Mr J Flaherty v Mrs J Darlington — 2022

The claimant worked as a one-to-one carer for the respondent's adult son. The tribunal found that the respondent's text message on 28 January 2021, saying 'wer gonna have to let u go', was a clear and unambiguous dismissal, and that any later telephone conversation did not amount to an effective retraction. The complaint of unlawful deductions from wages was withdrawn at the start of the hearing.

On reason for dismissal, the tribunal found that the principal reason was the respondent's conclusion that the employment relationship had broken down because of concerns raised by the son about the claimant, together with the respondent's own concerns about reliability and punctuality. The tribunal accepted that the claimant had queried his pay and had asserted a statutory right, but found that this was not the reason for dismissal and that the dismissal was not automatically unfair under section 104 ERA 1996.

The tribunal held that the reason for dismissal was capable of amounting to some other substantial reason under section 98 ERA 1996, but that the dismissal was unfair because the claimant was not given any process that satisfied the basic requirements of fairness and was not given an opportunity to respond to the concerns about him. The tribunal noted that the respondent was a small employer but also had access to external HR support.

The tribunal made an 80% Polkey reduction because it considered that the relationship between the claimant, the respondent and the son had probably broken down irretrievably, although it was not inevitable that dismissal would have followed if a fair process had been followed. It also found that the dismissal was in breach of contract: there was no written contract or express notice provision, and the claimant was entitled to reasonable notice, which the tribunal found to be three weeks. The case was listed for a later remedy hearing.