Mr R. Mohanan v Avery of Leicester (Operations) Limited — 2022

The tribunal found the claimant started work on 12 March 2018, not 8 January 2018, and the effective date of termination was 19 February 2020. Because he therefore had less than two years' service, the ordinary unfair dismissal claim failed for lack of jurisdiction. The tribunal nevertheless said the dismissal process would have been unfair if the claim had been in time, in particular because the respondent did not provide the disciplinary notes requested by the claimant and the appeal was dealt with on the papers rather than at a face-to-face meeting.

The claimant was suspended after an extended break on Boxing Day 2019 and an allegation that he took a Christmas star from the home. The tribunal accepted he left to deal with his disabled son's needs, but found he returned much later than authorised and did not clock in or out; it held that absence alone was not treated as gross misconduct, but taking the star without permission, with no remorse or insight, justified summary dismissal and defeated the wrongful dismissal claim.

On whistleblowing, the tribunal found the alleged letter to Penny Tilley around 14 November 2019 was not proved, accepted that the 11 December 2019 note about burnt soup and raw meat dripping onto desserts was made and qualified as a protected disclosure, and held that the 8 January 2020 statement about leaving work to attend his son was not a protected disclosure. It found neither Mr Khan nor Ms Archer knew of the protected disclosure when dismissing or hearing the appeal, and rejected the contention that dismissal was because of whistleblowing.

The tribunal extended time for the age and religion or belief discrimination and harassment claims under section 123 EqA because the incidents were treated as an act extending over a period, but the claims were dismissed on the facts. It accepted Jude Philips as a suitable comparator, found that Mr Kirkpatrick did use 'bullshit' and 'idiot' towards the claimant but because of workplace tension and the claimant's attitude rather than age or religion, did not find the 'dirty old pig' allegation proved, and found that any comment about Indian people eating pork was not shown to be because of religion or belief and was not sufficiently serious as a one-off incident to amount to harassment.

Holiday pay for 2019 failed because the claimant accepted he had been paid in full. Holiday pay for 2020 succeeded at £254.80 gross, unlawful deduction claims succeeded for £245.70 gross and £40.40 gross, and the public-holiday overtime deduction claim was withdrawn after the claimant accepted he had already been paid. The total gross award was £540.90, subject to statutory deductions.