Mr H Basson v Strong Services Ltd — 2021

Mr H Basson was employed by Strong Services Ltd from 17 June 2015 and was dismissed by letter dated 13 May 2019. The tribunal first dealt with an out-of-time argument and a strike-out application, holding that the unfair dismissal claim had been presented in time and should proceed. It also allowed an amendment as to the effective date of termination, applying the principles in Selkent Bus Co Ltd v Moore and Haywood v Newcastle upon Tyne Hospitals NHS Foundation Trust when considering notice and the effective date of termination.

On the merits, the tribunal accepted the claimant's evidence about the 1 April 2019 telephone conversation and found that he had not refused a drugs and alcohol test. It held that the respondent did not carry out a proper investigation, did not invoke its disciplinary procedure, did not seek medical advice, and did not show that the claimant had breached section 27 of the Transport and Works Act 1992. The tribunal also rejected capability as the reason for dismissal, noting that no medical opinion had been obtained and that the stated reason in the termination letter was not supported by the evidence.

The tribunal found that the principal reason for dismissal was the respondent's wish to cease paying the claimant's salary after forming an erroneous view that it only needed to pay him when he was working. It relied on the respondent's internal emails, the delay in paying April 2019 wages, and the 'no work, no pay' statement made on 3 May 2019. Having found that the respondent had not proved a potentially fair reason for dismissal, the tribunal held that the dismissal was unfair under section 98(4) ERA 1996 and, in any event, outside the band of reasonable responses because there had been no investigation, consultation, disciplinary hearing, appeal process, or medical evidence.

On remedy, the tribunal found four years' continuous service and awarded a basic award of £2,100. It accepted that the claimant had not failed to mitigate his loss and made no reduction for contributory conduct. It found no basis for a Polkey reduction. The tribunal also held that a 20% ACAS uplift was just and equitable, but the compensatory award was ultimately capped under section 124(1ZA) ERA 1996 at £36,400. The total award was £38,500. The tribunal made no award for immigration legal fees and dismissed the claimant's separate application for a financial penalty under section 12A of the Employment Tribunals Act 1996.