Member L Brown Tribunal Member W Muir Mr B Hewitson v Nash Asset Holdings Ltd — 2022

The claimant worked for the respondent from 5 January 2021 until his dismissal on 9 March 2021 as a driver/operative at Dunbar Cement Works. The tribunal found that he was subjected to unwanted conduct at work, including swearing, insults and abusive language by Mr Flint, Mr Beverley and Mr Orton, and that the respondent tolerated a culture in which such language was used. However, although the respondent knew that the claimant had anxiety, the tribunal found no evidence that the conduct was related to his disability or that his colleagues were aware of it, so the disability harassment claim failed.

The tribunal upheld the unlawful deduction from wages claim. It found that the respondent deducted five hours pay in relation to an allegation that the claimant had not cleaned a vehicle, and also deducted four hours pay where the claimant had been told he would be paid for eight hours for four hours' work plus the call-out fee. The tribunal held that the claimant was contractually entitled to be paid for those hours and awarded £107.60 gross.

On whistleblowing, the tribunal found that the claimant made a qualifying disclosure when he told managers at the respondent's client, Tarmac, that there was a bullying culture within the respondent's organisation. It accepted that the disclosure was in the public interest and that the claimant reasonably believed the information was true, and it also found that the disclosure had previously been made to the respondent in terms of section 43G ERA 1996. The tribunal rejected the respondent's explanation that the dismissal was for performance reasons, finding that there had been no prior performance concerns or genuine performance review, and held that the reason or principal reason for dismissal was the protected disclosure. It therefore found automatic unfair dismissal under section 103A ERA 1996.

The tribunal also found that the respondent had failed to provide the claimant with a written statement of terms and conditions of employment as required by section 1 ERA 1996. Applying section 38(3) of the Employment Act 2002, it awarded the minimum two weeks' pay, assessed at £1,080 gross. The tribunal's total award was £3,831.64 gross, comprising £107.60 for unlawful deductions, £2,644.04 for loss of earnings after dismissal, and £1,080 for the statement-of-terms award.