Mr A Chizzoni v CT Plus (Yorkshire) Community Interest Company — 2020

Mr A Chizzoni worked for CT Plus as a bus driver from 9 May 2016. By 2018 he had ongoing back pain and sickness absences, and the respondent's absence policy allowed Care and Concern meetings and Occupational Health reviews during long-term absence. After a 5 October 2018 incident and a series of emails and invitations from Joyce Ojudun and later Mr Nigel Thomas, the claimant did not attend several Occupational Health appointments or disciplinary meetings and did not engage with the respondent in the way it expected.

The tribunal applied BHS v Burchell and section 98(4) ERA 1996. It found that Mr Thomas genuinely believed the claimant was failing to follow reasonable management instructions, that belief was based on reasonable grounds, and the decision to dismiss in the claimant's absence was within the range of reasonable responses. The tribunal nevertheless held that the overall dismissal was unfair because the respondent failed to deal with the claimant's appeal. The emailed appeal was not acted on, and there was no explanation for the posted appeal not being addressed. The tribunal treated the appeal as an essential part of overall procedural fairness, referring to West Midlands Co-operative Society Ltd v Tipton and the ACAS Code.

On remedy, the tribunal accepted the respondent's case that there was no financial loss. It found that by the date of dismissal the claimant had exhausted statutory sick pay and had moved on to Personal Independence Payment from 26 April 2019, so a fair appeal would have made no difference and the dismissal would most likely have been upheld in any event, including on capability grounds. The basic award was calculated at £939.35, reduced by 60% for contribution to £563.61, and then increased by 20% for failure to follow the ACAS Code to a final award of £676.33.

The claimant's notice pay / breach of contract claim failed because the tribunal found that no further pay was due during any notional notice period once SSP had been exhausted. The holiday pay claim also failed. The tribunal accepted Ms Williams's evidence that the claimant had been paid the holiday pay due, including a payment of £601.75 on 25 October 2019 for 6.28 days of accrued but untaken leave. In an addendum, the tribunal noted that payslips sent after the hearing did not justify reopening the decision.