Ms Ismail (counsel) For the v Respondent — 2020

Mrs H McMahon was employed by Heron Financial Limited from 19 June 2017 to 4 June 2019 as a New Build and Mortgage Protection Adviser. The tribunal found her contract required normal hours including Saturdays, there was no signed opt-out from the 48-hour limit, and the respondent had not communicated the performance targets it later relied on. It preferred the claimant's evidence that a "Target Summary" and other later material were not shared with her and did not accept that there had been clear performance warnings.

On 30 May 2019, after returning from sickness absence, the claimant met Mr Thomas and said she was working more than 48 hours a week, that it was stressing her, and that she wanted to reduce her hours. She also raised that her May 2019 pay was short, including sick pay and commission. The tribunal accepted that these were assertions of statutory rights made in good faith. It found that the respondent dismissed her two working days later, on 4 June 2019, and rejected the respondent's case that the dismissal was for performance reasons.

The tribunal held that the reason or principal reason for dismissal was that the claimant had raised those statutory-right complaints. It noted that the respondent had not set out a credible, contemporaneous performance case, that no prior performance management had been shown, and that the dismissal meeting and grievance outcome did not reliably support the respondent's later account. The unfair dismissal claim under s.104 ERA 1996 therefore succeeded, and the tribunal made no Polkey reduction.

The wrongful dismissal and unlawful deduction claims also succeeded, but quantum was left for the remedy hearing or agreement between the parties. On wrongful dismissal, the respondent accepted at least £83.07 for four days' car allowance in July 2019, and the tribunal held notice pay and car allowance were due unless already paid. On unlawful deduction from wages, the tribunal accepted that commission was generated when the application was made and that there was no contractual term excluding payment after termination for work done before dismissal; it also found the claim for unpaid sick pay was in time and well founded. At remedy, the tribunal said the claimant had not adequately mitigated her loss and considered that, had she taken reasonable steps, her loss would have been fully mitigated by December 2019. It also recorded that any ACAS uplift would be considered at remedy.