Stuart Walton v Thurairajah Sivakumar — 2021

Mr Walton worked nights as a cashier at Mr Sivakumar's filling station. At the hearing the tribunal noted that the cash-back/deductions issue had already been dismissed earlier and was not a live claim. It found that the respondent had failed to provide written particulars of employment contrary to s.1 ERA 1996, treated that failure as deliberate, and awarded 4 weeks' pay under s.38 Employment Act 2002, calculated at £93.86 a week for a total of £375.44.

The unfair dismissal claim was dismissed. The tribunal considered three possibilities: that Mr Walton had been dismissed when he presented the claim in September 2018, that he had been dismissed in October 2019, or that he remained employed. It made no finding of fact as to which was correct, but held that on any of those versions the claim could not proceed: if the dismissal was in 2018 he had less than two years' service, if it was in 2019 the claim would have needed to be amended to plead that later dismissal, and if he remained employed there was no dismissal.

On disability, the tribunal accepted that Mr Walton was disabled by haemorrhoids and that Mr Sivakumar knew of the condition. It found that the change from cashier to cleaner, and the reduction in hours, were driven by the commission dispute over fuel-company payments and not by the disability. The tribunal held that there was no credible evidence that the cleaning work would require heavy manual tasks affecting the haemorrhoids, and that the objections about early starts and working six days a week were mainly tied to mental health reasons, which were not part of the pleaded case. The disability discrimination claim was therefore dismissed.