Case 2203333/2020 · Employment Tribunal
Ms K McCarthy, McKenzie Friend For the v Mr P Maratos, Legal consultant — 2020
- Case reference
- 2203333/2020
- Decision date
- 5 May 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Adkin Representations
- Venue
- London Central
Parties
2 namedClaimant
Ms K McCarthy, McKenzie Friend For the
Respondent
Key findings
Tribunal's reasoningMr A Harris worked as a delivery driver for the respondent florist for many years. The tribunal found that after a February 2020 accident involving the respondent's van, the parties' relationship deteriorated during the first Covid-19 lockdown. It found that the accident occurred after Mr Harris had finished his deliveries, that he was entitled to drive home in the van, and that a detour to visit his ill father was not shown to be a disciplinary matter.
The respondent sent a P45 by WhatsApp on 5 May 2020. The tribunal held that this was a dismissal, not a resignation by conduct, and rejected the respondent's case that Mr Harris had effectively resigned. It relied on the fact that there had been ongoing WhatsApp and telephone contact, that Mr Harris was not completely incommunicado, and that his 7 May 2020 letter showed he understood himself to have been dismissed.
The unfair dismissal claim succeeded. The tribunal found that the respondent had not established a fair reason and had not followed any fair process: Mr Harris was not told dismissal was being considered, was not invited to a meeting, and had no appeal. It reduced compensation by 50% for contributory conduct arising from his failure to communicate, applied a further 25% Polkey reduction, and added a 10% ACAS uplift for unreasonable failure to follow the ACAS Code.
The tribunal also upheld the unlawful deduction from wages claim for furlough pay and the breach of contract claim for notice pay, but left both amounts to be determined later. It found that furlough pay should have been paid at 80% from 16 March 2020 to 6 April 2020, subject to credit for sums already received, but the bank payments and payslip figures did not match precisely. The redundancy pay claim was withdrawn, the sick pay claim was not pursued, and the unpaid annual leave claim failed because the claimant did not prove an unpaid balance. A separate remedy hearing was listed, and the dates of service issue was deferred.
Claims and outcomes
6 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | Dismissal was found when the P45 was sent on 5 May 2020. The tribunal held there was no fair procedure, applied a 50% reduction to the basic award for contributory conduct, a 50% reduction to the compensatory award under s.123(6) ERA 1996, a further 25% Polkey reduction, and a 10% ACAS uplift. Final quantum was left to a later remedy hearing. | Upheld | — | — |
| Unlawful deduction from wages | Furlough pay claim under s.13 ERA 1996 succeeded, subject to credit for sums already received. The exact underpayment was left to be determined because the bank payments and payslip figures did not align precisely. | Upheld | — | — |
| Breach of contract | Notice pay claim succeeded, but the amount was left to be determined. | Upheld | — | — |
| Redundancy | Withdrawn during the hearing. | Withdrawn | — | — |
| Other | Claim for sick pay was not pursued and was dismissed. | Dismissed | — | — |
| Holiday pay | Claim for unpaid annual leave did not succeed because the claimant did not prove an unpaid balance. | Dismissed | — | — |
Legal tests applied
7 references- s.98 ERA 1996
- Polkey v AE Dayton Services Ltd
- London Transport Executive v Clarke
- s.122(2) ERA 1996
- s.123(6) ERA 1996
- s.207A TULR(C)A 1992
- s.13 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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