Case 3321538/2019 · Employment Tribunal

Claimant v Abromaitis v Abbey View Produce Ltd — 2021

Case reference: 3321538/2019
Decision date: 12 July 2021
Jurisdiction: England & Wales
Judge: Employment Judge George
Venue: Watford

Indexed: 22 May 2026

Parties

2 named

Claimant

Respondent

Abromaitis v Abbey View Produce Ltd

Key findings

Tribunal's reasoning

Mr V Abromaitis was employed by Abbey View Produce Ltd from 4 August 2014 and was dismissed on 16 April 2019 after allegations that he had entered a restricted area and smoked when not on a break. At this preliminary hearing, Employment Judge George considered the respondent's applications to strike out parts of the claim or require a deposit, and the claimant's complaints included unfair dismissal, direct age discrimination, notice pay, holiday pay, national minimum wage, and unauthorised deductions from wages.

The tribunal refused to strike out the age discrimination claim and refused a deposit order. Applying the rule 37 and rule 39 tests, and bearing in mind the burden of proof under s.136 Equality Act 2010, the judge held that the comparator evidence and the respondent's explanation were sufficiently disputed and fact-sensitive that the claim could not be said to have no or little reasonable prospect of success. For the same reason, and because a discrimination finding could affect the dismissal analysis, the unfair dismissal claim was also allowed to proceed. The notice pay claim was treated in the same way.

The tribunal struck out the holiday pay claim only for the period up to and including 31 December 2018. It held that the claimant's earlier holiday calculations were based on incorrect data, that leave does not carry over from year to year absent agreement, and that any claim based on earlier years had no reasonable prospect of success. The element from 1 January 2019 onwards was not struck out at this stage, but the claimant was directed to provide a proper calculation for that part of the claim.

The tribunal struck out the national minimum wage complaint because regulation 4B of the National Minimum Wage Regulations 2015 fixes the rate by reference to the start of the pay period, and because the claim was out of time. It also struck out the unauthorised deduction from wages allegations, including the claimed deductions for early and late finishes, the bank holiday item for 27 August 2018, and the comparison with a colleague from 2012 to 2013, on the basis that those allegations were out of time or had no reasonable prospect of success.

Claims and outcomes

6 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Age discrimination	The direct age discrimination complaint based on the dismissal on 16 April 2019 survived the respondent's strike-out and deposit application. The tribunal found the comparator evidence and the respondent's explanation were disputed and fact-sensitive, so it could not say the claim had no or little reasonable prospect of success at this stage.	Other	Age	—
Unfair dismissal	The unfair dismissal claim was not struck out and no deposit order was made. The tribunal said the claim was finely balanced but should proceed, particularly because the age discrimination allegations could affect the unfair dismissal analysis.	Other	—	—
Breach of contract	The notice pay / breach of contract claim was treated in the same way as the unfair dismissal claim and was not struck out or made subject to a deposit order.	Other	—	—
Holiday pay	The unpaid holiday pay claim was struck out only insofar as it related to the period up to and including 31 December 2018. The element from 1 January 2019 onwards was left to proceed, and the claimant was directed to particularise how that part was calculated.	Other	—	—
Other	The claim for failure to pay national minimum wage was struck out under rule 37. The tribunal held that the applicable NMW rate is the rate at the start of the pay period and also found the claim was out of time.	Struck out	—	—

Legal tests applied

8 references

Official outcome judgment PDF

Gov.uk primary record

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