Case 2303749/2018 · Employment Tribunal
In person For the v Respondent — 2022
- Case reference
- 2303749/2018
- Decision date
- 28 June 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Morton Date
Parties
1 namedClaimant
In person For the
Respondent
- —
Key findings
Tribunal's reasoningMr Drugan's claim form included unfair dismissal, wrongful dismissal, unlawful deduction from wages in respect of holiday pay, and disability discrimination. The judgment records that the disability discrimination claim was withdrawn, and that the pay-related claims were not pursued at the hearing. The tribunal therefore focused on the constructive dismissal case arising from his resignation on 8 June 2018 and the respondent's summary dismissal without notice on 25 July 2018 during his notice period.
On constructive dismissal, the tribunal held that the trustees were entitled to take their own view on PG's redundancy appeal and that the delayed acknowledgement of the claimant's grievance was not a repudiatory breach. It accepted that he had been spoken to inappropriately by Ms D'Elia on 8 June 2018, but found from the wording of his resignation letter that he did not treat that incident as terminal: he said he did not wish to resign and would be happy to continue as chief executive. The constructive dismissal claim therefore failed.
On the unfair dismissal issue, the tribunal accepted that the respondent had identified suspicious financial transactions, including unexplained cash withdrawals, salary advances, taxi usage and other payments, and that misconduct was a potentially fair reason to dismiss. However, it found the dismissal procedurally unfair because the claimant was never given the investigation meeting required by the respondent's own procedure, was never given a disciplinary hearing, and was dismissed in his absence without warning that a decision would be taken without him. The tribunal also held that it could not be satisfied on the Burchell test that the respondent had a reasonable belief in misconduct without first hearing the claimant's account.
The tribunal found that the claimant had contributed 80% to his dismissal and said any unfair dismissal award would be reduced accordingly and uplifted by 20% for ACAS Code failures, but the hearing was liability only so no final award was calculated. The wrongful dismissal claim was upheld because the tribunal could not conclude on the balance of probabilities that he had committed the alleged gross misconduct, and it noted that compensation for the three-week gap to his new job would have to be set off against the unfair dismissal calculation to avoid double recovery.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The tribunal rejected the constructive dismissal case at paras 44-47, holding that the trustees were entitled to take a different view on PG's redundancy appeal, that the delayed grievance acknowledgement was not a repudiatory breach, and that the 8 June 2018 conversation with Ms D'Elia was not treated by the claimant as terminal in his resignation letter. | Dismissed | — | — |
| Unfair dismissal | The tribunal upheld the unfair dismissal claim arising from the respondent's summary dismissal on 25 July 2018. It found the dismissal procedurally unfair and said the Burchell test was not met because the claimant was not given an investigation meeting or a disciplinary hearing and was dismissed in his absence without warning. The judgment said any unfair dismissal award would be reduced by 80% for contributory conduct and uplifted by 20% for ACAS Code failures, but no final award was determined in this liability judgment. | Upheld | — | — |
| Wrongful dismissal | The reasons at paras 55-56 uphold the wrongful dismissal claim; the judgment summary line 2 describes this as a breach of contract claim. No final monetary figure was quantified in this liability judgment. | Upheld | — | — |
| Disability discrimination | The judgment records that the disability discrimination claim was subsequently withdrawn by the claimant and was not determined on the merits. | Withdrawn | Disability | — |
Legal tests applied
9 references- s.95(1)(c) ERA 1996
- Western Excavating (ECC) Ltd v Sharp
- implied term of trust and confidence
- Burchell test
- Sainsbury's Supermarkets v Hitt
- Iceland Frozen Foods v Jones
- s.98(4) ERA 1996
- Polkey v A E Dayton Services
- s.123(6) 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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