in person For the v Respondent — 2019

The tribunal upheld the unfair dismissal claim. The claimant had worked for the respondent from 2001 until his dismissal in May 2018. The respondent said the reason for dismissal was some other substantial reason, namely a breakdown in mutual trust and confidence, or alternatively conduct. The tribunal found the evidence about the reason for dismissal was limited and incomplete, that relevant discussions between the directors and the HR consultancy had not been properly disclosed, and that the respondent had not put forward a consistent explanation. Having examined the factual matters relied on, the tribunal did not accept that the claimant had behaved in the fundamentally destructive, unreasonable or belligerent way alleged by the respondent. It found instead that the respondent had taken a negative and at times hostile approach to him, particularly in relation to dress requirements, overtime, management criticism and the handling of his grievance.

The tribunal held that the respondent's case on clothing, overtime, excessive emails and alleged refusal to work with directors was not supported by the evidence. It found the claimant had complied with the dress code by mid-November 2017, that his overtime claims followed the long-standing practice, and that the respondent had changed its position on overtime without clearly setting out any new procedure. The tribunal also found that the claimant continued to seek to resolve matters and return to work. To the extent relations had broken down, the tribunal found that this occurred largely because of the respondent's conduct rather than because of conduct by the claimant.

The tribunal also found the dismissal procedure unfair. It treated the meeting of 25 April 2018 as a disciplinary hearing. There had been no proper investigation, the allegations were not clearly set out, relevant documents were not provided, the claimant was given less than 24 hours' notice, and the hearing did not remedy those defects. The appeal was also found to be flawed. Mr Chapman represented that he would decide, and had decided, the appeal, but the tribunal found that he had not in fact made the appeal decision. In those circumstances, and applying the statutory test and the authorities it cited, the tribunal concluded that no reasonable employer would have dismissed in these circumstances.

The unlawful deduction from wages claim also succeeded. The tribunal found that the claimant was entitled to claim overtime for lunch hours worked, that retrospective authorisation by signed overtime forms had been the established practice for many years, and that there was no good reason for Mr Wilson to refuse authorisation. It held that 8 hours had been paid and 5.5 hours had not, and ordered the respondent to pay 5.5 hours wages, with the amount to be determined if not agreed.

The tribunal upheld the age discrimination claim in relation to dismissal. It found that the burden of proof shifted because of the overall evidence, including the respondent's unreasonable and unexplained treatment of the claimant and, in particular, the misleading evidence about Ms Jemma Lowe's role after the claimant left work. The tribunal accepted evidence that Ms Lowe, who was younger, took over key elements of the claimant's managerial role and later received a salary increase, and it found the respondent had materially misled the tribunal about that evidence and withheld relevant documentation. The tribunal also considered the November 2017 letter referring to the business moving on rapidly and the claimant finding it difficult to keep up with the pace of change.