Mr Ricky Cauldwell v Defries Associates Ltd — 2023

Mr Ricky Cauldwell was employed by Defries Associates Ltd from 1 March 2015 until his effective date of termination on 29 October 2021. The tribunal accepted that, in October 2021, he raised concerns about a 2019 tap invoice and later referred to a historic settlement payment, but it did not accept that he had a reasonable belief that either matter showed embezzlement or any other criminal offence for the purposes of whistleblowing protection under s.43B ERA 1996. The tribunal found the tap invoice was much more likely to have been an error than deliberate wrongdoing, and it found the settlement-payment point was raised only after dismissal and was not causative of dismissal in any event.

The tribunal found that the real reason for dismissal was the claimant's email of 25 October 2021, in which he included the contact details of almost 300 tenants on an unsecured email. The respondent treated that as a serious data breach, reported it to the ICO, and obtained legal advice before dismissing him. On that basis the tribunal rejected the automatic unfair dismissal claim under s.103A ERA 1996, found the dismissal was not wrongful because it arose from conduct amounting to breach of contract, and dismissed the notice-pay claim.

The dismissal was nevertheless unfair because there was no attempt to follow a proper disciplinary procedure or the ACAS Code. Applying the Polkey approach, the tribunal concluded that a fair procedure would have taken two weeks to complete, but that dismissal would still have been inevitable after that process. It therefore limited compensation to two weeks' net pay and found it just and equitable to make no basic award because the claimant contributed to his dismissal by 100%.

The tribunal also dismissed the holiday pay claim. It found there was no evidence before it of any outstanding holiday entitlement at hearing, and noted that the claimant had already received a net payment of £1,926.47 on 31 January 2022 described as being in satisfaction of holiday pay.