Mr S Crabtree v E E Limited — 2021

The claimant raised concerns from 2018 about inaccurate footfall figures at the Stockton store and their effect on commission. The tribunal accepted there was an issue with the counter and that targets were manually adjusted, but it held the commission scheme was expressly non-contractual and discretionary, so he could not reasonably believe the non-payment of commission was a breach of legal obligation. Applying the public interest factors from Chestertons v Nurmohamed, the tribunal found the alleged disclosures were mainly about the claimant's own pay and a small number of colleagues, the interests affected were income, and there was no evidence of any secret or deliberate wrongdoing. It therefore found no protected disclosure under s.43B ERA 1996 and dismissed both the automatic unfair dismissal claim and the whistleblowing detriment claim.

On the dismissal itself, the tribunal found the reason was conduct, not capability. After the Stockton store closed, Mr Clark investigated stock discrepancies, spoke to witnesses and reported concerns about stock being written on and off, damaged demo stock, missing items and the absence of required incident reports. Mr Potter concluded the allegations were made out and dismissed the claimant summarily for gross misconduct on 1 August 2019; the appeal was later unsuccessful. The tribunal accepted the claimant had instructed colleagues contrary to stock-management procedures, had failed to safeguard stock and had failed to account for missing items. It rejected the suggestion that the PIP, redundancy process or Redcar placement formed part of a plan to remove him, and held that the investigation and dismissal were within the range of reasonable responses under s.98(4) ERA 1996, applying Burchell and the related authorities cited in the reasons.

The contract claims also failed. The tribunal held the bonus/commission claim could not succeed because the retail bonus scheme was non-contractual and discretionary, and the respondent had exercised that discretion rationally and in good faith after adjusting Stockton targets and making payments in connection with the move to Redcar. It also held that the stock-management misconduct amounted to a repudiatory breach of contract, so the claimant was not entitled to notice pay. The holiday pay claim under Regulation 14 of the Working Time Regulations 1998 was withdrawn by the claimant at the hearing and recorded in the judgment as dismissed.