Case 2417876/2018 · Employment Tribunal
Mr Mark Holden (first claimant) Mr Christopher Holden (second claimant)
The tribunal found that the claimants were engaged from 28 June 2018 as general assistants on 40-hour weeks and £400 per week each, rather than as the management couple they said had been offered. It preferred the respondents' evidence on the disputed documents and incidents and did not accept that the key health and safety or grievance letters had been shown to the respondents during employment.
For Mark H's whistleblowing and dismissal case, the tribunal found no qualifying protected disclosures under section 43B ERA 1996 and held that he resigned by email on 15 August 2018 after Chris H had been dismissed, rather than being dismissed himself. It also rejected the related detriment allegations, because it did not accept that the disclosures or the alleged retaliatory abuse occurred as claimed.
Chris H was dismissed on 15 August 2018 after the incident said to have occurred on 14 August 2018, but because he had less than two years' service he could not pursue ordinary unfair dismissal. Applying section 98(4) ERA 1996, the Burchell test and Polkey, the tribunal still held that he was entitled to one week's notice pay. Mark H was also found to be entitled to one week's notice pay because he had not been paid his contractual notice on resignation.
The discrimination claims all failed. The tribunal accepted that Mark H was disabled within section 6 Equality Act 2010 by reason of a stomach and back injury causing IBS and left leg pain, but found the respondents did not know of that disability at the material time. It held that the 'disgusting' perspiration complaint was a hygiene matter, did not accept the alleged spice incident or homophobic abuse as proved, and found no hostile environment, discrimination arising from disability, reasonable-adjustments failure, or victimisation.
The only monetary awards were notice pay of £400 gross to Mark H and £400 gross to Chris H, making a total award of £800. No injury to feelings award or other discrimination compensation was made, and the holiday pay and unlawful deduction from wages claims were dismissed.
| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Whistleblowing | Section 103A ERA 1996 automatic unfair dismissal claim by Mark H. The tribunal found no qualifying protected disclosures were made and held that he resigned by email on 15 August 2018 rather than being dismissed. | Dismissed | — | — |
| Whistleblowing | Section 47 ERA 1996 detriment complaints by both claimants based on alleged retaliation for disclosures. The tribunal did not accept the alleged protected disclosures or the alleged retaliatory abuse. | Dismissed | — | — |
| Breach of contract | Notice pay claim by Mark H. He resigned, but the tribunal found he had not been paid one week's notice and awarded £400 gross. | Upheld | — | £400 |
| Wrongful dismissal | Notice pay claim by Chris H following summary dismissal. The tribunal found he was dismissed on 15 August 2018 without a proper process and awarded £400 gross, being one week's pay. | Upheld | — | £400 |
| Sexual orientation discrimination | Direct discrimination complaints by both claimants under section 13 EqA 2010. The tribunal did not accept the alleged homophobic comments, customer remarks, or differential treatment as proved. | Dismissed | Sexual orientation | — |
| Harassment | Harassment complaints by both claimants under section 26 EqA 2010. The tribunal rejected the alleged unwanted conduct and found no hostile environment on the evidence. | Dismissed | Sexual orientation | — |
| Disability discrimination | Direct disability discrimination claim by Mark H under section 13 EqA 2010. The 'disgusting' perspiration complaint was found to be a hygiene matter, and the spice allegation was not accepted as proved. | Dismissed | Disability | — |
| Disability discrimination | Discrimination arising from disability claim by Mark H under section 15 EqA 2010. The tribunal found no dismissal and no proved unfavourable treatment because of something arising in consequence of disability. | Dismissed | Disability | — |
| Disability discrimination | Reasonable adjustments claim by Mark H under sections 20 and 21 EqA 2010. The tribunal did not accept the alleged PCPs requiring more than 40 hours' work or immediate work after hospital. | Dismissed | Disability | — |
| Victimisation | Section 27 EqA 2010 victimisation complaints by both claimants. The tribunal did not accept that the grievance letters relied on as protected acts were shown to have been sent during employment. | Dismissed | — | — |
| Holiday pay | Both claimants' Working Time Regulations 1998 holiday pay complaints failed for lack of proof of accrued but untaken leave at termination. | Dismissed | — | — |
| Unlawful deduction from wages | Both claimants' unlawful deduction from wages complaints under section 13 ERA 1996 failed because the tribunal did not find the asserted wage shortfall proved. | Dismissed | — | — |
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