Mr G McEvoy v McCallum Foods Ltd — 2023

The tribunal substituted McCallum Foods Ltd T/A German Doner Kebab as the respondent and dealt with the claims from the claimant's employment as a nightshift cleaner at 52-56 Renfield Street, Glasgow. The claimant started work on 25 February 2019, later worked 48 hours a week, and was paid GBP13 per hour, with gross monthly pay found to be GBP2,496 and net monthly pay GBP2,200.

The dismissal followed a dispute on 2 June 2023 about holiday pay. The claimant said he was owed 6 days' holiday pay, shouted at the manager, and said he would not return until it was paid. The respondent sent letters referring first to threatening behaviour and then to bullying behaviour, but the statements taken in the investigation recorded only that the claimant had shouted about holiday pay and did not support allegations of threatening or bullying conduct. The claimant also sent a self-certification sickness form referring to stress caused by management in work. He did not attend the rescheduled disciplinary meeting, and on 10 June 2023 he was dismissed for gross misconduct without notice or pay in lieu of notice and without an appeal being offered.

Applying section 98 ERA 1996 and the Burchell test, the tribunal held that the respondent did not have reasonable grounds to believe that the claimant had engaged in bullying behaviour and that the dismissal was unfair. It found that the investigation material did not support the allegations, that the claimant was not given detail of the conduct said to justify dismissal, and that no steps were taken to investigate his account that he was absent because of work-related stress. The tribunal awarded a basic award of GBP2,419.20 and a compensatory award of GBP11,025, with a 5% uplift because no appeal was offered, and it rejected any reduction for contributory conduct.

The redundancy payment claim was dismissed because there was no redundancy situation. The tribunal upheld the holiday pay claim under section 13 ERA 1996 and ordered GBP472.12, being GBP723 for 56 hours at GBP13 per hour less GBP255.88 already paid. It also upheld the breach of contract claim for notice pay and awarded GBP2,304, representing 4 weeks' gross pay. The race discrimination claim and the religion or belief discrimination claim were withdrawn and dismissed.