In person For the v Respondent — 2021

The claimant started work for JD Wetherspoon plc at the Railway Bell on 12 June 2019 as a Bar Associate. Her contract guaranteed a minimum of 12 hours per week and she was subject to a 13-week probationary period. During probation the tribunal found three instances of lateness, some sickness absence, and concerns about performance and conduct, including an incident on 21 July 2019 involving a customer known as Charlie.

On 23 July 2019 the claimant complained to Mr Sloan by telephone and email that she was not being given the hours she believed she was owed. The tribunal accepted that this amounted to an assertion of a statutory right, because she was in substance complaining that she was not being paid for the minimum hours she believed she was entitled to work. It also found that the complaint was made in good faith, even though she was mistaken about the contractual number of hours and thought the guarantee was 16 hours rather than 12.

The tribunal found that the complaint was not the reason for dismissal. It accepted evidence that a second probation review was already in contemplation before the complaint was forwarded to management, and that the claimant’s probation reviews reflected continuing concerns about performance. The tribunal placed weight on the evidence of Miss Pugh and Miss Dalton, including the 6 August 2019 email setting out detailed concerns said to underpin the failed probation. It concluded that the failed probation, and the claimant’s perceived poor attitude and performance during probation, were the sole reasons for termination.

Applying s104 ERA 1996 and the guidance in Mennell v Newell and Wright (Transport Contractors) Ltd, the tribunal held that the claimant’s principal reason for dismissal was not the statutory-right complaint, either directly or indirectly. The claim for automatic unfair dismissal was therefore dismissed in full, and no remedy was awarded.