Mr T Borcescu v - Solicitor FDM Group Limited — 2020

Mr Borcescu started work with FDM Group Limited on 23 April 2019 as a Graduate Recruiter and was dismissed on 25 July 2019 during probation. The tribunal heard evidence from the claimant and two respondent witnesses, found the respondent witnesses credible and reliable, and did not accept the claimant's account about MK's assessment results, stream allocation, or the reasons for the disciplinary meeting.

The unfair dismissal claim was dismissed for want of jurisdiction. The tribunal held that the claimant did not have the two years' qualifying service required by s.108(1) of the Employment Rights Act 1996 and rejected the argument based on Article 30 of the Charter of Fundamental Rights of the European Union and Redfearn v Serco Ltd.

The tribunal also held that any wrongful dismissal claim was satisfied because the probationary contract allowed termination on one week's notice and the respondent paid the claimant one week's notice in lieu. On the commission issue, the tribunal found that commission for the July bookings was not payable until the end of August 2019, by which time the claimant had left employment, and clause 6.8 removed entitlement where employment ended before commission became payable.

In the alternative, the tribunal found on the facts that the claimant had altered the records for candidate MK to show a pass after a resit that had not occurred, and that he had knowingly placed MK on an unsuitable course. It concluded that the claimant's commission claim failed both because the payment had not yet fallen due and because his conduct would in any event have disentitled him to payment. The tribunal noted the process had been rushed, but said that would not have changed the outcome.