: I Ashraf W Muir Mr Kacper Kryczyk v Nickam Ltd — 2021

The claimant brought a claim for automatically unfair dismissal by reason of protected disclosure and a claim for unlawful deduction from wages. He relied on three alleged disclosures: concerns about broken kitchen ventilation at a staff meeting on 31 August 2020, out-of-date frozen prawns on 8 September 2020, and alleged furlough fraud on 28 September 2020. The tribunal found that the ventilation issue had been raised by the Head Chef, not the claimant; that the claimant did not advise the manager about out-of-date prawns; and that he did not tell the manager the respondent was fraudulently claiming furlough. The tribunal found that on 28 September 2020 the claimant was instead raising a pay issue about missing hours on his payslip.

The tribunal accepted that there was a redundancy situation arising from the lockdown and the need to reduce staff costs and menu cover. It found that the manager decided to reduce kitchen staff from four to two and front-of-house staff from four to two, selecting staff by length of service and financial cost to the business. The claimant had the shortest service of the kitchen staff and was one of the higher-paid staff, while the tribunal did not accept that the respondent retained a later-recruited chef. It also rejected the claimant's case that there had been a material change in the manager's behaviour after the alleged disclosures.

On that basis, the tribunal held that the sole or principal reason for the claimant's dismissal was not that he had made protected disclosures, and his automatically unfair dismissal claim was dismissed. The tribunal noted that he had sought compensation for losses up to mid-May 2021 and that he had taken reasonable steps to mitigate his loss, but no compensatory award followed because the dismissal claim failed.

On wages, the respondent accepted during the hearing that there was no written contractual clause authorising a deduction and that it had deducted £40 from the claimant's final wages on 22 October 2020 in respect of food it believed he had removed. The tribunal held that the deduction was unlawful under s.13 ERA 1996 because no written authority or exception applied. The £40 had already been repaid to the claimant, so the tribunal made no order for payment.