in person For the v Mr. R. Freedman, Chief Executive and Financial Officer — 2018

The claimant began work as a Security System Engineer in September 2015. The tribunal accepted that the respondent had concerns about his timekeeping and attendance from late 2017 onwards, and that there had been informal discussions and written warnings. It also found that a final written warning issued on 16 May 2018 was given without a hearing or appeal, and that an email disclosed at the hearing suggested the claimant had sought and believed he had obtained permission to be absent on that occasion. The tribunal held that clause 13.2 of the contract could not exclude Employment Rights Act rights, and treated the dismissal as based on conduct following the claimant being seen 32 minutes late on 28 June 2018.

Applying section 98 ERA 1996, British Home Stores v Burchell, Iceland Frozen Foods v Jones, Stein v Associated Dairies Ltd and the ACAS Code, the tribunal held that the dismissal was unfair. It found that the respondent had not carried out as much investigation as was reasonable, because Mr Waisman both witnessed the alleged lateness and made the dismissal decision, there was no disciplinary hearing, no opportunity for accompaniment, and no appeal. The tribunal also found that no reasonable employer would have dismissed in that way, particularly where the decision-maker acted on an immediate reaction rather than an objective process.

On remedy-related issues, the tribunal found that if compensation is later awarded there should be a 75% Polkey reduction after three months, because it considered there was a 75% chance the claimant would have been dismissed in any event after that period. It also found culpable conduct contributing to dismissal at 30% and said any compensation should first receive a 23% uplift for ACAS Code failures. The unfair dismissal compensation was therefore left for the later remedies hearing, with no final unfair dismissal sum determined in this judgment.

The breach of contract claim succeeded by consent, with the respondent ordered to pay £1,553.70 net. The claim for unpaid accrued annual leave was dismissed upon withdrawal. The claim for unauthorised deductions from wages also succeeded: the tribunal found no proof of the respondent’s overpayment defence and held that deductions of £338.46, £85.71 and £65.00 from the claimant’s final salary were unauthorised, giving a total wage deduction award of £489.17.