Mr. M Bandura v Mr. M Fernandez — 2021

The claimant had worked for the respondent's village butchers shop since 2 January 2000 and was the sole person running the shop. The tribunal accepted the claimant's evidence on hours and found that he worked 50.5 hours a week. It also accepted that he had never been given an employment contract or written statement of terms. On the pay evidence, the tribunal found that the claimant was paid less than the applicable national minimum wage for the relevant periods.

The tribunal found that the events leading to the end of employment began with the claimant's illness in July 2019. It accepted that he was discharged from hospital after three nights, told the respondent on 15 July that he was fully fit to return, and was then told not to come back and to stay at home to recover. The tribunal found that the respondent later put him on statutory sick pay from 1 August 2019 despite his being well, that a younger full-time butcher was employed on 1 August 2019, and that the claimant's employment was not communicated to him as ending until the P45 arrived on 4 October 2019. The tribunal found there had been no disciplinary or investigative meetings and no process of any kind.

The tribunal rejected the respondent's case that the dismissal was for capability or that health and safety concerns justified the decision. It found that the reason given to the claimant at the time was retirement, that the respondent had not taken any steps to establish the claimant's medical condition, and that the dismissal was therefore linked to age. It concluded that the claimant had been treated less favourably than a younger man and that the respondent had not established any legitimate aim. The tribunal also noted that the ACAS code had been wholly ignored.

The tribunal upheld both unlawful deduction claims. It found that the claimant's wages had been subject to a series of unlawful deductions over the relevant period, but that recovery was limited to the two years before the claim date. It also found that he had been underpaid in August 2019 and was entitled to wages from 1 September to 4 October 2019. The tribunal upheld the age discrimination claim, the unfair dismissal claim, and the claim that no statement of terms had been provided. The judgment was on liability only and stated that a separate remedy hearing would be listed.