Mr D O’Boyle v McCallum Food Limited t/a German Donner Kebab — 2023

The claimant, Mr D O’Boyle, had worked for McCallum Food Limited t/a German Donner Kebab from 10 March 2019 and was latterly a Prep Supervisor paid at £11.50 per hour. His line manager from around August 2022 was Mr Dale Glendinning. On 2 January 2023 the claimant was scheduled to work but did not attend, saying he felt unable to work after difficulties in his relationship had affected his emotional state. He did not notify Mr Glendinning before his shift. He returned to work on 3 January 2023 and was told by a chef, on Mr Glendinning’s instructions, to go home, that his shifts that week were covered, and that he would be asked to attend a meeting.

The tribunal accepted the claimant’s evidence that he was dismissed at a meeting on 9 January 2023. At that meeting he explained why he had been absent on 2 January and that he had returned to work the next day, but Mr Glendinning said he was going to terminate his employment. The respondent later sent an undated letter headed “Your verbal resignation”, but the tribunal preferred the claimant’s evidence and found that the respondent had not discharged the burden of showing that it dismissed him for a potentially fair reason under section 98(1) and (2) of the Employment Rights Act 1996. The tribunal said it was not clear whether the reason was capability, conduct, or some other substantial reason, and on that basis the dismissal was unfair.

In considering compensation, the tribunal said a fair process would have involved fair notice of the meeting, notice that dismissal might be decided, written reasons, and a right of appeal. None of those features were present. The basic award was calculated at £776.25 using two years’ service, an average of 22.5 hours per week, and the claimant’s hourly rate of £11.50. The compensatory award was calculated at £2,639.46: £1,800 for the period from 9 January to 5 March 2023 at £225 per week net, and £839.46 for 6 March to 16 April 2023 at £139.91 per week after Universal Credit, with the tribunal finding that he should have been able to secure sufficient work by 17 April 2023. The total award was £3,415.71.