Stephen Gardner v LKM Recycling Ltd — 2021

Stephen Gardner worked for LKM Recycling Ltd from July 2015, starting when he was 16. In September 2018 he was put on a three-month trial as a supervisor with a promised increase of £0.90 per hour if he performed satisfactorily. The tribunal accepted that after three months he asked for the pay rise, was not told that he had failed probation, and had not received any formal appraisal. It also accepted that on 7 May 2019 he accidentally damaged a new machine with the grab and received a warning on 9 May 2019 without prior investigation or discussion.

On 21 May 2019 Mr Gardner threw a bottle from the 4m-high sorting platform into the waste bin area because it was obstructing the walkway. The tribunal found that the bottle did not narrowly miss anyone, that no witness evidence or CCTV was produced, that the dismissal decision had been made before the meeting, and that he was not allowed to be accompanied or to make representations. It found that the bottle incident was a pretext, and that the real reason for dismissal was the earlier accidental damage to the new shredder, or alternatively the prospect of avoiding a redundancy payment. The unfair dismissal claim therefore succeeded, with no deduction for contributory conduct and a 25% uplift for failure to follow the ACAS Code.

The age discrimination claim was dismissed because the tribunal found no facts from which dismissal could properly be inferred to be because of age; the suggestion that he was targeted because he was young was treated as speculation. The tribunal also found that Mr Gardner was entitled to a contractual notice period, but made no separate award for it because that period fell within the loss of earnings already being compensated. The unlawful deduction from wages claim succeeded under s.13 of the Employment Rights Act 1996 for the unpaid £0.90 per hour supervisor uplift from December 2018 to 21 May 2019, and the final award was £10,545.76: a basic award of £867, a compensatory award of £8,292.76, and £1,386.00 for the wages claim.