Mr P Porchetti v Brush Electrical Machines Ltd — 2021

Mr P Porchetti was employed by Brush Electrical Machines Ltd as a senior sales director in APAC from 2015 until his dismissal in July 2019. The tribunal accepted that there were longstanding performance concerns, including late or missing expense submissions, repeated chasing over BBP updates, failures to respond promptly to customers and colleagues, and failure to meet the minimum threshold on his personal objectives under the incentive plan. It found that by May 2019 the relationship had moved into without prejudice settlement discussions, which were aimed at an agreed exit, and that those discussions ultimately broke down after the claimant disclosed outstanding expenses of about £59,252.43.

On the unfair dismissal claim, the tribunal held that the dismissal was procedurally unfair because no dismissal procedure was followed. It found that the principal reason for dismissal was some other substantial reason, namely the irretrievable breakdown of the employment relationship after the failed settlement discussions, with performance issues forming the background. The tribunal also said that, had a fair process been followed, the claimant would have been fairly dismissed in any event, so the compensatory award was reduced by 100% under Polkey. It further reduced the basic award by 100% for contributory fault and said no ACAS uplift was appropriate.

The direct race discrimination claim failed. The tribunal rejected the claimant's case that he was dismissed because he was Italian or not British, rejected the alleged comments about nationality and South East Asian employees, and found that Mr Alvey was not an appropriate comparator because he was the claimant's junior direct report on a fixed-term contract. Applying the burden of proof under section 136 of the Equality Act 2010, the tribunal held that the claimant had not established facts from which discrimination could be inferred, and that in any event the respondent had given credible non-discriminatory explanations grounded in performance and the failed exit discussions.

The unlawful deduction from wages claim succeeded. The tribunal found that the effective date of termination was 18 July 2019, so the respondent owed wages for the period 4 July 2019 to 18 July 2019. The amount due was not fixed in the liability judgment and was left to the parties to agree or for a remedy hearing if necessary.