Case 4103524/2022 · Employment Tribunal
Mr I Lew-Gorzynski v David Cargill House — 2023
- Case reference
- 4103524/2022
- Decision date
- 21 February 2023
- Jurisdiction
- Scotland
- Judge
- Employment Judge R Bradley
- Venue
- person in Glasgow
Parties
2 namedClaimant
Mr I Lew-Gorzynski
Respondent
Key findings
Tribunal's reasoningThe tribunal dismissed the unfair dismissal claim after finding that the respondent had proved a conduct reason for dismissal and that the decision-maker, Ms Mellor, believed the claimant was guilty of the allegations she upheld. It found that she had reasonable grounds for that belief, carried out a reasonable investigation, and was entitled to conclude that the treatment of residents, including the wheelchair incident reported on 14 January 2022, amounted to gross misconduct. The tribunal also rejected the claimant's criticisms about bias, comparator treatment, the rota evidence, and the suggestion that the resident should have been interviewed, because those points were not material to the information before Ms Mellor when she decided to dismiss.
The wrongful dismissal claim for notice pay was dismissed. The tribunal said the claimant would ordinarily have been entitled to 10 weeks' statutory notice, but found that he had started other work on 1 April 2022 and was earning £338.89 net per week, which exceeded the £333.20 net weekly loss he claimed. On that basis, it held that he had mitigated his loss entirely and no damages were due for breach of contract. The holiday pay claim also failed because the respondent's unchallenged evidence was that it had already paid £1,091.20 gross in lieu of accrued untaken holiday on or about 28 April 2022, which the tribunal treated as more than the one day's holiday the claimant said remained unpaid.
The tribunal dismissed the claim for an increase under section 38 of the Employment Act 2002 relating to the alleged failure to provide a written statement of terms and conditions. It held that because no award was made, there was no award capable of being increased under section 38, and it did not need to decide whether a written statement had in fact been issued. Separately, on 8 December 2022 the claimant sought to amend the case to add two new unlawful deduction from wages claims for overtime during suspension and an alleged longer-term underpayment, but the tribunal refused that amendment under Selkent because the claims were new, out of time, and would have required an adjournment and further evidence.
Claims and outcomes
4 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Unfair dismissal | The tribunal held that the respondent showed a conduct reason for dismissal and that Ms Mellor, acting as the decision-maker, had a reasonable basis for concluding the claimant had committed gross misconduct. It found the investigation and dismissal were within the range of reasonable responses. | Dismissed | — | — |
| Wrongful dismissal | The notice-pay claim failed because, although the claimant would ordinarily have been entitled to 10 weeks' statutory notice, the tribunal found he had fully mitigated any loss by starting other employment on 1 April 2022 at a higher net weekly rate than the loss claimed. | Dismissed | — | — |
| Holiday pay | The tribunal accepted the respondent's evidence that it had paid £1,091.20 gross in lieu of accrued untaken holiday on or about 28 April 2022, which exceeded the one day's leave the claimant said remained due. | Dismissed | — | — |
| Other | This was the claim for an increase under section 38 of the Employment Act 2002 said to arise from an alleged failure to provide a written statement of terms and conditions. The tribunal held no award had been made to which any uplift could attach and so the claim failed. | Dismissed | — | — |
Legal tests applied
12 references- Selkent Bus Co. Ltd. v Moore
- Abernethy v Mott Hay and Anderson
- W Devis & Sons Ltd v Atkins
- Beatt v Croydon Health Services NHS Trust
- Burchell test
- Iceland Frozen Foods band of reasonable responses
- Sainsbury's Supermarkets plc v Hitt
- MBNA Limited v Jones
- s.98(4) ERA 1996
- s.38 Employment Act 2002
- Regulation 14 Working Time Regulations 1998
- Article 3 Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994
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.
How we got this data
Case essentials (reference, date, judge, venue, country, claim categories) are extracted from the structured metadata gov.uk publishes alongside each decision. Parties and monetary figures are extracted from the judgment PDF text. Key findings and per-claim outcomes require a second extraction pass that is not yet complete for this case — until then, the primary source linked above is the authoritative record. See full methodology.
Named in this case and want it removed? Submit a takedown request. The page will be withdrawn on receipt and the editor will follow up within five working days.