(1) Mr Mariusz Swica (‘first claimant’) (2) Mrs Angelika Swica (‘second claimant’) v Acrelane Timber Limited — 2023

The first claimant, Mr Mariusz Swica, and the second claimant, Mrs Angelika Swica, were employed by Acrelane Timber Limited as drivers and were dismissed without notice on 25 May 2020 after being recalled from furlough during the first Covid-19 lockdown. The tribunal found that the dismissals were for conduct: both claimants were unavailable for work when no annual leave had been authorised, were unavailable when recalled from furlough, and the first claimant misstated his whereabouts while the second claimant was found to have asked Mrs Kruzynska to mislead the respondent. The tribunal rejected any suggestion that the reason for dismissal was invented within the meaning of Royal Mail Group Ltd v Jhuti.

Applying section 98 ERA 1996 and the Burchell / Foley / Iceland Frozen Foods line of authority, the tribunal held that the respondent had a genuine belief in misconduct, reasonable grounds for that belief, and a reasonable investigation in the circumstances. It accepted the disciplinary notes as contemporaneous, found that the claimants knew the case against them and had the opportunity to respond, and concluded that the hearing process, including the absence of a separate note-taker and the fact the hearing was held outside during the pandemic, remained within the range of reasonable responses. The unfair dismissal claims were therefore dismissed.

The breach of contract claims succeeded because the tribunal, making its own objective findings, was not satisfied that the claimants' conduct was so serious as to justify summary dismissal without notice. It found that the Poland travel during furlough was not, on the evidence, clearly shown to be so serious in itself, and it was not prepared to make objective findings of dishonesty on the limited evidence about the telephone calls. The separate unlawful deduction of wages and holiday pay claims were dismissed: notice pay is not wages under Delaney v Staples, no separate unpaid wages or untaken holiday was established, and the remedy for the breach of contract claims was left to be agreed or determined later.