Case 2601450/2017 · Employment Tribunal
Mr Mustapha Alli v Duval FM Limited FINAL HEARING — 2018
- Case reference
- 2601450/2017
- Decision date
- 16 July 2018
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Camp
- Panel members
- Ms D Newton, Mr MJ Pavey
Parties
2 namedClaimant
Mr Mustapha Alli
Respondent
Key findings
Tribunal's reasoningAt the final hearing on 30 and 31 May 2018, Mr Mustapha Alli was found to have been employed by Duval FM Limited as a Security Officer at the Regus building after a TUPE transfer/service provision change around 11 April 2016. Duval lost part of its Regus contract around 15 March 2017; Mr Alli did three further day shifts on 18, 25 and 26 March 2017, and the tribunal found that his employment did not end until he received the P45 around 9 July 2017, making that the effective date of termination.
On dismissal, the tribunal accepted that Mr Stone genuinely believed Mr Alli had failed to keep in contact, and that this was a conduct-related reason under ERA 1996 s.98. The dismissal was nevertheless unfair because the respondent did not hold a meeting, did not issue a clear dismissal letter, provided no appeal, and did not make adequate checks to confirm whether the claimant had contacted the help desk. The tribunal also held that redundancy was not the reason for dismissal. The wrongful dismissal complaint succeeded because no notice was given and the respondent did not allege gross misconduct or any other fundamental breach. Remedy was not decided at the final hearing; the tribunal directed the parties to try to agree compensation or provide dates for a one-day remedy hearing.
On discrimination, the tribunal accepted that Mr Alli was disabled within the Equality Act 2010 because of anxiety with depression and schizo-affected schizophrenia, but it dismissed both the section 15 complaint and the reasonable adjustments complaint because it was not satisfied that Duval knew, or could reasonably have been expected to know, of the disability at the relevant time. The tribunal found that any earlier knowledge may have existed at a predecessor employer, but that knowledge did not automatically transfer on this service provision change, and it was not satisfied that Mr Alli had told Duval about the condition when asked about night work. The tribunal also refused permission to add a direct race discrimination complaint, so the determined discrimination issues were disability-only. The holiday pay claim failed because no holiday accrued after 1 April 2017, and the guarantee payment claim under ERA section 28 failed because the contract did not require him to work on any particular day.
Claims and outcomes
7 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Redundancy | The tribunal held that redundancy was not the reason for dismissal; any redundancy situation after the Regus contract was lost had almost nothing to do with the July 2017 dismissal. | Dismissed | — | — |
| Unfair dismissal | The tribunal found the dismissal was outside the band of reasonable responses because there was no meeting, no clear dismissal letter, no right of appeal, and inadequate checks were made on whether the claimant had contacted the respondent. | Upheld | — | — |
| Wrongful dismissal | The respondent gave no notice of dismissal and did not allege gross misconduct or any other fundamental breach of contract. | Upheld | — | — |
| Disability discrimination | Section 15 complaint: the tribunal was not satisfied that the respondent knew, or could reasonably have been expected to know, that the claimant was disabled at the relevant time. | Dismissed | Disability | — |
| Disability discrimination | Reasonable adjustments complaint: it failed for the same lack-of-knowledge reason. | Dismissed | Disability | — |
| Holiday pay | The tribunal found that after 1 April 2017 the claimant did no further work, the holiday year ran from 1 April to 31 March, and no holiday entitlement accrued for the final period. |
Legal tests applied
8 references- s.98 ERA 1996
- s.98(4) ERA 1996
- band of reasonable responses
- Iceland Frozen Foods v Jones [1982] IRLR 439
- London Ambulance Service NHS Trust v Small [2009] IRLR 563
- ACAS Code of Practice on Disciplinary and Grievance Procedures
- s.15(2) Equality Act 2010
- paragraph 20(1)(b) of Schedule 8 Equality Act 2010
Official outcome judgment PDF
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