Case 3201465/2019 · Employment Tribunal
Mr Joseph Coldron v Lionweld Kennedy Flooring Limited — 2022
- Case reference
- 3201465/2019
- Decision date
- 17 February 2022
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Russell Representation
- Venue
- East London Hearing Centre
Parties
2 namedClaimant
Mr Joseph Coldron
Respondent
Key findings
Tribunal's reasoningMr Joseph Coldron moved from employment with The Grating Company into employment with Lionweld Kennedy Flooring Limited following the 27 April 2018 asset purchase agreement and TUPE transfer. The case centred on debtor recovery under the APA, allegations of false or "fresh air" invoices, and the later failure to transfer £6,219.97 that had been paid into a seller account. The tribunal accepted that the Claimant had some limited involvement with QuickBooks and debtor chasing, but it found insufficient evidence that he had raised the fresh air invoices or knew the APA warranties were inaccurate when given.
The unfair dismissal claim succeeded. The Respondent conceded that it had not followed a fair disciplinary process and dismissed the Claimant summarily on 18 February 2019. The tribunal found, however, that the Claimant's post-APA conduct was blameworthy in two respects: he was slow to provide debtor information needed to pursue recoveries, and he failed to arrange transfer of the £6,219.97 to the Respondent, at one point giving misleading information about a BACS payment. On that basis, the tribunal held that if a fair procedure had been followed dismissal was very likely, with only a 10% chance that he would not have been fairly dismissed after a four-week process. It also found contributory fault and said the basic and compensatory awards would each be reduced by 75%, with a 10% uplift for the Respondent's unreasonable failure to comply with the ACAS Code.
The claim for notice pay, brought as breach of contract, failed. The tribunal held that the combined effect of the Claimant's inaction about disputed debts, the misleading account of the £6,219.97, and his withholding of that money without reasonable and proper cause seriously damaged trust and confidence. By 18 February 2019 the Respondent was entitled to treat the employment contract as fundamentally breached and dismiss without notice. The judgment was liability-only as to the unfair dismissal compensation, but it did determine that the Respondent had no contractual right to make deductions for the final wages and holiday pay, so £1,967.20 wages and £496.23 holiday pay were payable.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal found the dismissal unfair because the Respondent did not follow a fair disciplinary procedure. The judgment records that liability was decided, but the unfair dismissal remedy was not quantified in this judgment; it found a four-week fair procedure period, a 90% chance of fair dismissal thereafter, 75% contributory fault reductions, and a 10% ACAS uplift for the eventual remedy. | Upheld | — | — |
| Breach of contract | The claim for notice pay failed. Although the Respondent had not followed a fair procedure, the tribunal held that the Claimant's conduct regarding debtor recovery and the £6,219.97 retained sum amounted to a fundamental breach that destroyed trust and confidence and entitled the Respondent to dismiss summarily without notice. | Dismissed | — | — |
| Unlawful deduction from wages | The tribunal held that the Respondent was not authorised by clause 7 of the employment contract to deduct this sum because the £6,219.97 was not personally owed by the Claimant. It ordered payment of the final wages shown on the payslip. | Upheld | — | £1,967 |
| Holiday pay | The tribunal held that accrued holiday pay shown on the final payslip was due and unpaid. It rejected the Respondent's reliance on clause 7 and awarded the accrued holiday sum. | Upheld | — | £496 |
Legal tests applied
15 references- Burchell test
- Polkey reduction
- W Devis & Sons Ltd v Atkins
- Devonshire v Trico-Folberth Ltd
- Panama v London Borough of Hackney
- Steen v ASP Packaging Ltd
- Charles Robertson (Developments) Ltd v White
- Software 2000 Limited v Andrews
- Neary v Dean of Westminster
- s.123 ERA 1996
- s.122(2) ERA 1996
- s.123(6) ERA 1996
- s.13 ERA 1996
- regulation 14 of the Working Time Regulations 1998
- ACAS Code of Practice
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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