Mr. James Owuzu v The Hurlingham Club — 2022

The tribunal found that Mr James Owuzu was engaged by The Hurlingham Club as a casual worker from August 2019, but that the written engagement terms and the evidence showed no overarching contract covering periods when he was not working. It held that he was nevertheless an employee during each individual assignment because, while on shift, there was sufficient mutuality of obligation and control: he worked personally, was supervised, and was subject to the club's policies and disciplinary procedures.

On unfair dismissal, the tribunal held that the claimant did not have two years' continuous employment. It identified breaks in service, including periods when he did not work after furlough, a later period in mid-2021, and a further break when his biometric residence permit expired on 22 November 2021 and his engagement was terminated until a fresh letter of engagement took effect from 1 December 2021. On that basis, the qualifying period in section 108 ERA 1996 was not met and the unfair dismissal claim was dismissed.

On wrongful dismissal and notice pay, the tribunal found that on 1 October 2022 the claimant and Mr Martin Ivanov had an altercation, that the claimant was the aggressor, and that he struck Mr Ivanov in the face. It held that use of physical violence was a serious and deliberate breach of contract amounting to repudiatory conduct, so the respondent was entitled to terminate without notice. The wrongful dismissal claim and notice pay claim were therefore dismissed.

The race discrimination claim was also dismissed. The tribunal accepted that the claimant was black and compared his treatment with Mr Ivanov, who was white, but found the circumstances materially different because the evidence showed the claimant was the person who used violence. It held there were no facts from which race discrimination could be inferred, and in any event the real reason for the dismissal was the claimant's behaviour rather than race. The tribunal noted that victimisation had been mentioned in the ET1 but was not pursued after the preliminary hearing and was not determined.