Case 3325116/2019 · Employment Tribunal
Mr Joe Butler v Smartcomms SC limited — 2020
- Case reference
- 3325116/2019
- Decision date
- 9 October 2020
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Alliott
Parties
2 namedClaimant
Mr Joe Butler
Respondent
Key findings
Tribunal's reasoningThis was an open preliminary hearing before Employment Judge Alliott sitting alone on 7 July 2020. The issue was whether the claimant's breach of contract claim should be struck out on the ground that it had no reasonable prospects of success. The claimant had been employed as an associate javascript developer from 3 April 2018 and his employment ended with immediate effect on 23 August 2019 for unacceptable attendance levels. The tribunal noted that he had insufficient service to bring an ordinary unfair dismissal claim.
The claim form asserted breach of contract based on an implied term. The judge understood the argument to be that the respondent should not have dismissed the claimant in circumstances where dismissal could prevent him from qualifying for permanent health insurance. The tribunal recorded that the respondent had a group income protection scheme and also referred to policy material produced by the claimant, which appeared to define illness or injury differently and referred to reduced working.
The judge summarised the medical and attendance history before termination, including the claimant's absence from 30 October 2018, his phased return on four days per week from 1 January 2019, later extensions to that arrangement, the occupational health report of 3 July 2019, and the claimant's further absence from 5 August 2019. The tribunal also noted a dispute about what was said at the 23 August 2019 disciplinary meeting, but said that conflict could not be resolved at this hearing.
Applying the authorities referred to in Harvey, including Aspden v Webbs Poultry and Meat Group (Holdings) Ltd and Awan v ICTS Ltd, the judge concluded that the implied term relied on by the claimant was good law. On that basis, and given the history of absence and reduced working, the tribunal held that it could not say the claim had no reasonable prospect of success. It therefore declined to strike the claim out and also refused the respondent's oral application for a deposit order on the same basis.
Claims and outcomes
1 finding recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Breach of contract | Open preliminary hearing on strike-out and deposit order only. The tribunal held it could not say the claimant had no reasonable prospect of succeeding on his implied-term breach of contract argument and therefore made no strike-out order and no deposit order. No substantive liability determination was made. | Other | — | — |
Legal tests applied
4 references- Aspden v Webbs Poultry and Meat Group (Holdings) Ltd
- Awan v ICTS Ltd
- officious bystander test
- business efficacy test
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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