Mr M Foster v Sterling Facilities Management (UK) Ltd: 1400080/2025
EMPLOYMENT TRIBUNALS
Case No 1400080/2025
Between
Mr M FosterClaimantSterling Facilities Management (UK) LtdRespondent
Before
Employment Judge WoodheadMr P Diamond (instructed by Counsel) for respondentDate 12 May 2026
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of breach of contract in relation to notice pay is not well-founded and is dismissed.[3]The claim under Section 24 (2) Employment Rights Act 1996 for compensation for financial loss attributable to an unlawful deduction from wages is not well founded and is dismissed.[4]The Claimant accepted that he has now been paid all that is due in respect of holiday pay and his complaint was therefore dismissed on withdrawal.[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of breach of contract in relation to notice pay is not well-founded and is dismissed.[3]The claim under Section 24 (2) Employment Rights Act 1996 for compensation for financial loss attributable to an unlawful deduction from wages is not well founded and is dismissed.[4]The Claimant accepted that he has now been paid all that is due in respect of holiday pay and his complaint is therefore dismissed on withdrawal.
REASONS
[5]Summary reasons having been given orally at the hearing on 12 May 2026, on 14 May 2026 the Claimant requested full written reasons. I have exercised my discretion to issue full written reasons (rather than summary written reasons).
THE ISSUES
[6]I do not recite the procedural history to this case. Suffice to say that it had been listed for a final hearing in February 2026 but neither party had made any 1 of 20 material steps towards complying with case management orders. I converted that hearing to a case management hearing, clarified the issues between the parties (as reflected in the agreed list of issues in the Appendix), gave them a detailed explanation of how to prepare for this relisted final hearing and what to expect and set down case management orders.[7]At the start of this hearing the parties agreed that the holiday pay issue had been resolved and that the case was essentially about whether the Claimant resigned or was dismissed (which would be determinative of the unfair dismissal claim and the notice pay claim) and whether he had suffered any financial losses attributable a payment of wages which the respondent conceded had been made very late.
THE HEARING
[8]Before I started to hear evidence I sought to put and the Claimant and his friend, Ms Powell, on an equal footing by explaining the process and in particular by providing guidance on:8.1 The importance of the list of issues as defining the matters that we would be asked to determine and therefore the focus that the parties should put in cross examination;8.2 The process of hearing the evidence and cross examination, tribunal questions, re-examination and the need for the Claimant, when it came to cross examination of the Respondent’s witnesses, to challenge them on things that they said in their witness evidence which are relevant to the List of Issues and which the Claimant disputed.8.3 I explained that if a witness is not challenged on the evidence in their witness statement the Tribunal is entitled to accept that evidence (take it at face value) and that if the Claimant did not challenge a witness on a material point then that could affect the Claimant’s ability to establish his case.[9]One of the reasons for hearing the Claimant’s evidence first was that it would afford the Claimant and Ms Powell the opportunity to hear the Respondent (who was professionally represented) cross examine which might assist Ms Powell and the Claimant in preparing their own questions for the Respondent’s witnesses.[10]We lost about an hour an a half of time on the first day because of issues with the documents. The Respondent had disclosed its witness statements early and then subsequently instructed solicitors and disclosed more detailed statements. The sequence of events (as explained to me) was that the Respondent had sent their first statements to the Claimant in March, the Claimant had sent his statement to the Respondent in April and the Respondent had sent two more detailed statements on the date ordered for exchange of statements. I concluded that it was in the interests of justice to allow the Respondent to rely on its more detailed statements as the Claimant was not materially prejudiced by the Respondent’s 2 of 20 reliance on those statements. The parties had also failed to agree a single bundle of documents. Consequently I had:10.1 Claimant Bundle: 260 pages that included the original witness statements [CHB[]]]10.2 Respondent Bundle: 347 pages [RHB[]]]10.3 WhatsApp Chat transcript: two pages [WACT[]]]10.4 Witness statements:10.4.1 Claimant: 4 pages and 14 numbered paragraphs [CWS[]]]10.4.2 Mr Darren Simms’ (formerly a director of GL1 (as defined below) and since then Operations Manager for the Respondent first statement: two pages [DSWS1:[]]]10.4.3 Mr Darren Simms’ second statement: three pages [DSWS2:[]]]10.4.4 Mr Gurjit Singh’s (Director of the Respondent) first statement: one page [GSWS1:[]]]10.4.5 Mr Gurjit Singh’s second statement: four pages [GSWS2:[]]]10.4.6 Ms Lisa Walsh one page [LWWS[]]] - Ms Walsh did not attend the hearing[11]We concluded the Claimant’s evidence by lunch on 11 May 2026. We concluded Mr Simms and Mr Singh’s evidence in the afternoon of 11 May 2026. I heard submissions from the parties on the morning of 12 May 2026 and then took time to reach my decision.
FINDINGS OF FACT
[12]Having considered all the evidence, I find the following facts on a balance of probabilities.[13]The parties will note that not all the matters that they told me about are recorded in my findings of fact. That is because I have limited them to points that are relevant to the legal issues.[14]The Claimant at all material times worked under a zero hours contract.[15]I accept Mr Singh’s undisputed evidence as follows:15.1 In 2024 the company that originally employed the Claimant (which I refer to in short as “GL1”) was owed around £100,000 by a bad debtor. On the advice of accountants Mr Singh liquidated GL1 and transferred staff, including the Claimant, to the Respondent. 3 of 2015.2 The liquidation of GL1 triggered the termination, with immediate effect on 17 October 2024, by JD Wetherspoon, of one of GL1’s most important contracts under which it provided security services to a number of pubs [RHB86]. This was a significant loss of business.15.3 There was then a substantial delay in recovering from JD Wetherspoons monies owed for security work done at various JD Wetherspoons premises, including one called the Regal where the Claimant regularly worked. This was compounded by the fact that payment was made to the account of GL1 which was in liquidation.15.4 This meant that, having transferred staff to the Respondent, the Respondent had cash flow problems, loss of a significant client that it expected to transition to the new company and had to delay paying staff for work done.15.5 The Claimant was told about the potential to transfer to the new supplier of security services to the Regal premises (“Bridgegate”), but chose to stay with the Respondent.15.6 The Respondent sought to reassure staff that it would aim to make up the shifts that they had lost through the loss of the JD Wetherspoons contract.[16]It was not in dispute that the Claimant was not paid the sum of £1,925.44 (gross) in respect of hours worked between 02/09/2024-26/10/2024 and that the Respondent paid the Claimant late, in instalments, with the total sum having been settled by March 2025. I accept Mr Singh’s evidence that the Claimant was paid sooner than staff who had remained with the Respondent and that those staff agreed longer term repayment plans.[17]Around 21 October 2024 Bridgegate approached the Claimant and offered him the role of Head Doorman back at the Regal. He told Mr Simms that day. Mr Simms appreciated the Claimant telling him and I accept his evidence that he told the Claimant that the Claimant should do what was best for him and that he would not stand in his away.[18]In their conversation on 21 October 2024 I accept that Mr Simms told the Claimant that the Claimant taking that job with Bridgegate would present significant conflict of interest issues. I accept Mr Simms’ oral evidence that what he was referring to was the fact that when the Claimant worked at the Regal and at Gloucester Rugby Club (“GRC”) under the Respondent’s employment the Respondent had flexibility to ask the Claimant to, for example, go late to the Regal after a GRC shift and visa-versa because the Respondent had oversight and control of staffing on both contracts. If the Claimant worked at the Regal for Bridgegate there would not be that flexibility and oversight and it might be that he would need to stay at GRC for longer and be late for a shift at the Regal and Bridgegate might not be understanding of that. 4 of 20[19]This goes to one of the central disputes of fact. The Claimant worked regularly at GRC when there was a Saturday game, and on Monday evenings. On 26 October 2024 he accepted a shift at GRC and there was a game that day. The Claimant’s position was that he was only obliged to work at GRC from 11:30am to 7pm. The Respondent’s position was that, on accepting the shift, the Claimant knew that he might have to work later than 7pm if guests stayed longer after the game. Security had to remain in attendance to 8pm and potentially later on those occasions. The Claimant was an SIA badged security guard and there are heath and safety and other requirements as to the number of such guards needed on a site, for example in GRC’s drinks bar. Stewards are not security professionals in this respect.[20]I find that the Claimant was required to be available at his GRC shift beyond 7pm if it was operationally necessary. I reach this conclusion because I accept the practical sense in Mr Singh’s evidence (he could not be sure when all the guests would have left GRC after a game) and because the WhatsApp message that the Claimant replied to in accepting the shift says [CHB109]: 21 /10/2024, 1 5:36 - Darren Door Manager: Shift available at Gloucester Rugby on Saturday (26th October) approx. 1 pm - 6:30 /7pm Are you available? please also confirm if you need parking (only send Reg if not had previously or if reg is different to what we have already) 21/10/2024, 15:40 - Marcel: Yes please I can do the gios rugby shift on Saturday, is the gios rugby shift on for this evening? and also please remember I'm coming to meet with Darren at 5pm this evening 21/10/2024, 16:13 - Marcel: 23/10/2024, 11 :40 - Darren Door Manager: Please report to our HQ on site to sign in, Site / venue - Gloucester Rugby - Saturday 1 2th October Shift times - 11:30am - approx. 7pm Dress code - Hospitality team - new dress code- Beige chinos, white or black T- Shirt a quarter zip will be issued on arrival. (if you do not have Beige chinos please refer to the usual dress code below Dress code - Smart black trousers (no jeans), black shoes (no trainers), white shirt (black suit jacket if possible) a black tie POO - Lisa Walsh - Supervisor on site for the day 5 of 20 Parking -Parking will be held at Archives , Clarence Row, Alvin St, Gloucester GL1 3DW. 23/10/2024, 11:47 - Marcel: Receive thank you 23/10/2024, 11 :48 - Darren Door Manager: correction 26th October*[21]The Claimant made much of the fact that the Respondent’s response form says “On 26 October 2024, the Claimant was scheduled to work at Gloucester Rugby, with his shift ending at 7:00pm,” [CHB41]. However, I consider this to be an error on the part of the person who submitted the form and who at that time acted as the Respondent’s representative. The contemporaneous documents clearly point to 7pm being an indicative shift end time but I find that the Claimant knew, through custom and practice and because the WhatsApp messaged said “approx. 7pm”, that he might have to stay later. Had that not been the case he would not have needed to ask Mr Singh and Mr Simms to go at 7pm.[22]This is an unusual case in that there is no documentary evidence contemporaneous to the key events which sheds any light on whether the Claimant was dismissed on 31 October 2024, as he contends, or resigned on 26 October 2024 as the Respondent contends. The Respondent seemed to accept that it had not followed good practice in failing to document what had happened.[23]I make the following findings of fact with respect to events on 26 October 2024:23.1 The Claimant was running late for his shift on 26 October 2024 at GRC and messaged to say he was having trouble with traffic.23.2 That day the Claimant was assigned to security in a lounge bar area of the rugby club.23.3 At lunch time Mr Singh (Duty Manager that day) called the Claimant to encourage him to take his lunch break. The Claimant declined to take his break. Mr Singh anticipated that this was because the Claimant was going to want to leave early for a shift at the Regal. However, the Claimant did not at that time ask Mr Singh for permission to do so. I accept the Respondent’s submission, on the balance of probabilities, that the Claimant declined a lunch break potentially as a sort of bargaining chip for leaving early (albeit he did not say as much at lunch time to Mr Singh or indeed later that day).23.4 The Claimant had accepted a shift at the Regal to start at 7:30pm [CWS8].23.5 There is an HQ at GRC where security staff sign in and out and where they pick up their communications ear pieces and associated equipment. Ms Walsh was the supervisor in HQ that day.23.6 Mr Simms arrived at GRC at around 18:00 that evening. He then started a tour of the security positions and worked his way up the main building. I 6 of 20 accept his evidence that he cannot be precise on timings, so long after the events in question.23.7 At 18:15 the Claimant said he called HQ on the radio but got no reply. The Respondent disputes that there would have been a failure to respond to a radio call because of the security implications and I accept that evidence on the balance of probabilities. In any event not much turns on this.23.8 At around 18:30 the Claimant went to HQ and asked Ms Walsh if he could leave early and he told her that at that point there were no guests in the area of the bar which he was assigned to. Ms Walsh did not have the authority to let the Claimant leave his shift early, told him to return to post and said that Mr Singh would come and speak to him.23.9 The Claimant’s evidence was that close to his area of responsibility was another security post at which there was a Security Officer, two Stewards and 14 Guests. I accept this evidence but also accept Mr Singh’s uncontested evidence that they nonetheless needed the Claimant to be on duty at the other end of the bar area. As I will come on to explain, the Claimant left the GRC before he was permitted to do so and this meant that Mr Simms (who was not in uniform) had to cover the Claimant’s area as a badged SIA security guard.23.10 I accept Mr Singh’s evidence [GSWS2:20-21] that around 18:50 the Claimant told him that he intended to leave to start his shift at the Regal for Bridgegate. I accept the Claimant’s evidence that by this time the two Stewards had left and there was the Security Officer with 10 Guests at his post at the other side of the bar. Mr Singh told the Claimant that it would not be possible for the Claimant to leave his post which needed to remain manned.23.11 The Claimant then approached Mr Simms and asked him if he could leave (Mr Simms by this time knew that the Claimant had already asked Mr Singh if he could leave). Mr Singh was near Mr Simms and the Claimant when the Claimant was speaking to Mr Simms and Mr Singh could hear the conversation and see the Claimant’s body language and face. Mr Simms wondered whether, having been told by Mr Singh that he could not leave, the Claimant approached him because he thought he might be ‘a softer touch’.23.12 Mr Simms told the Claimant that he was needed until 8pm, that he could not leave and that he told the Claimant that if he did leave he would not be offered any more shifts at GRC. This was what the Claimant described as Mr Simms bullying him off. I accept Mr Simms’ evidence that, had the Claimant asked earlier in the day to leave early, then they could have made arrangements for other security staff who had finished their shifts (for example those covering the grounds which cleared earlier), to cover the Claimant’s post. Owing to the fact that the Claimant made his request 7 of 20 as late as he did, there were no other staff members that could be reallocated to his post so there was no flexibility to let the Claimant leave.23.13 I accept the Respondent’s position that the Claimant wanting to leave early put them in a difficult position. They were already in financial difficulties because of the loss of the JD Wetherspoons contract and they did not want to run the risk of not meeting the standards required by GRC and losing that client as well.[24]As I set out in my summary of the law below, the question of whether the Claimant resigned or was dismissed is an objective one that I must determine after considering all the facts available to the parties at the time. If the employer terminated the contract then there was a dismissal. If the employee terminated the contract then there was a resignation.[25]There was no assertion, in the facts of this case, that the Claimant resigned in circumstances where he was entitled to treat himself as having been dismissed because of a fundamental breach by the Respondent (constructive dismissal). The Claimant did not accept that he had resigned at all.[26]As to the question of whether the Claimant resigned or was dismissed I conclude as follows:26.1 The Claimant was upset by the refusal of Ms Walsh, Mr Singh and then Mr Simms to let him leave early or at 7pm so that he could go to work for Bridgegate at the Regal. He clearly thought that there were insufficient guests in the bar to warrant his presence and thought the Respondent was being unreasonable in not letting him go. However, he did not know the contractual and other obligations of the Respondent to GRC and the Claimant did not have an appreciation of the financial difficulties that the Respondent already had and the importance of not doing anything to jeopardise an important client relationship with GRC.26.2 The Claimant was also clearly upset by Mr Simms’ ultimatum – that if the Claimant left early, he would not be offered further work at GRC. The Claimant described this as being ‘bullied off’. That he was upset is also evidenced by the fact that the Claimant then, against the Respondent’s instructions, left his post, handed his equipment back in at HQ and went to attend his shift with Bridgegate at the Regal. The Claimant was of course under pressure because he had accepted new employment with Bridgegate and did not want to be late for his shift as Head Doorman for his new employer.26.3 On the balance of probabilities I find that the Claimant did unequivocally resign by telling Mr Simms that he quit.26.4 The Claimant was a valued employee that the Respondent would have wanted to retain. The Claimant always attended his shifts and they 8 of 20 considered the Claimant as closer to a friend than an employee. Indeed in submissions counsel for the Respondent said that, if the Claimant were to acknowledge to the Respondent that he had gone wrong in how he acted on 26 October 2024 and if the Claimant asked to come back to work at the Respondent again, then they would consider him for new employment (I have taken full account of the fact that this was not evidence, it was a submission). The Respondent clearly has genuine sympathy for the Claimant, that his work with Bridgegate did not work out, that he started earing less money when his employment with the Respondent ended and that ultimately his employment with Bridgegate terminated.26.5 I put no weight on Ms Walsh’s witness statement because it was not tested in evidence. I do however accept Mr Singh’s and Mr Simms’ evidence as probable that Ms Walsh told them that, on signing out at HQ, the Claimant announced that he had quit. It is clear to me that the Claimant was upset about the Respondent’s refusal of his requests and so I think it is probable that he did repeated his statement that he had quit when he signed out at HQ.26.6 Had the Claimant not resigned on 26 October 2024 he would have been due to work back at GRC on Monday 28 October 2024. I accept the Respondent’s evidence that they hoped that the Claimant would get back in touch with them to discuss what had happened on the Saturday night and the fact that the Claimant had left his shift without permission. I accept Mr Singh’s evidence that had he done so they would have allowed him to retract his resignation and that whilst they would have followed a disciplinary process, on Mr Singh’s evidence, that would most likely just have resulted in a warning. On Mr Singh’s oral evidence I accept that “the Claimant just had to reach out and it could have been resolved”.26.7 The Respondent characterised this as an ‘olive branch’. I do not think that is a fair characterisation because there was no reaching out by the Respondent to the Claimant. The Respondent did not make contact with the Claimant. However, I accept their evidence that had the Claimant reached out to them then they would have given the Claimant a route back. I can see why, in the circumstances of what the Claimant did on the evening of 26 October 2024, the Respondent felt that the Claimant would need to reach out to them first.26.8 I make clear here that I have taken into consideration the possibility that the Respondent was angry with the Claimant for leaving his shift early and, having given him an ultimatum, decided to just terminate his employment by issuing him with a P45. However, I do not consider that this was the most probable sequence of events, particularly in circumstances where the Claimant was upset about not being allowed to leave his shift and left without permission.26.9 The Claimant said he called the Respondent on 28 October 2024. 9 of 20 However, all we have in terms of documentary evidence in that regard is the following WhatsApp messages from 28 October 2024 through to November 2024 [CHB109] [RHB100] (neither party gave me an explanation for the blank entries): 28/10/2024,13:01 -Sterling Security: Hi Marcel, Please be advised , the shift at Gloucester rugby tonight has been Covered 28/10/2024,15:15- Marcel Foster: Hi shruti , thanks for letting me know 08/11/2024,16:23 -Marcel Foster: 08/11/2024,16:24 -Marcel Foster: 13/11/2024,11:54 -Marcel Foster: 14/11/2024,13:45 -Marcel Foster: Good afternoon, can I have my payslip for the month of October please 14/11/2024,15:30 -Sterling Security: you will get the payslip by the end of today , its not ready yet .please keep an eye on your inbox , Thanks 14/11/2024,15:46 -Marcel Foster: ok thanks 18/03/2025,10:18 -Sterling Security: Good Morning, Could you kindly confirm your bank details at your earliest convenience? Thank you . 19/03/2025,10:52 -Marcel Foster: Good morning, could you say the reason for me to confirm my bank details?!. 10 of 20 9/03/2025, 1 1 : 10 -Sterling Security: it is to make payments 21/03/2025, 14: 22 -Marcel Foster: Good afternoon, could you say how much the payments going to be please 21/03/2025, 14 : 4 5 -Sterling Security: Good afternoon, Everybody is out of the office today . Someone will be in touch Monday to let you know 21/03/2025,15:21 -Marcel Foster: OK thanks 24/03/2025,15:03 -Sterling Security: Hi Marcel, Please can you send over your bank details. We need these details to be able to make payment, regards, 26/03/2025, 16:08 - Sterling Security: Hi Marcel, As we have not received correspondence from you regarding your current bank details, please be advised payments will be made to the account we hold on record. Many thanks, 26/03/2025, 16:31 - Marcel Foster: Hello, please do not send any payments to my account until my case has been discussed properly , I'm in a dispute with the company through employment tribunal and I'm awaiting further instructions from them, thank you 26/03/2025, 17:29 - Marcel Foster: 11 of 20 Good afternoon, I've just checked my account and £500 has been sent in from the company, can I have theaccount details from which this money came please so I can return it, as I can't accept any payment from the company at this time because I've a case with the employment tribunal regarding unpaid wages and compensation which isn't resolved, so could you give me the account details this money was sent from please so I can return it 26/03/2025, 18:38 - Sterling Security: Good Evening, Today I have made a payment towards the outstanding amount on your account. I will continue to make weekly instalments until the balance is paid. We have not received any information regarding a tribunal, however you are free to continue pursuing any avenue you wish too. Kind regards, 26/03/2025, 19:41 - Marcel Foster: My case is with the tribunal currently , I'm awaiting response or instructions from them, I haven't heard from the company in months now, I didn't like the way I've been treated, I've been left for months without pay from you, which I had to barrow money to pay my bills and debts which I've incurred over that period because of not been paid, I'm therefore seeking compensation, if your willing this can be discussed with my representative , Sandra Powell [NUMBER], Thank you 26/03/2025, 19:47 - Marcel Foster: You will receive confirmation through the post in a few days, where im giving my representative permission to discuss my case with you , thank you 29/03/2025, 06:49 - Marcel Foster: Good morning, I've received another payment in my account from the company, I did inform you on Wednesday 26/3/25 that I don't want any money going into this account, until an agreement & settlement is made , my position remains the same (please don't send any money to my account) for further correspondence please speak to my 12 of 20 representative , thank you 29/03/2025, 16:48 - Sterling Security: Good evening Marcel. I have just paid your remaining balance. As previously discussed we have not received any official correspondence regarding a tribunal. We were able to clear your balance and have done so. Kind regards 29/03/2025, 16:48 - You blocked this contact. Tap to unblock.26.10 The Claimant’s case is that he was dismissed with effect from 31 October 2024 by virtue of receipt of a P45 on 15 November 2024 marking his termination date as 31 October 2024. I accept the Respondent’s evidence that administratively they had made an error on the P45 in naming 31 October 2024 as the leave date rather than 26 October 2024. Given that the Claimant, on his own evidence, had worked a Monday evening shift at GRC for over three years, I find it improbable that he would have simply replied to a message saying that the Respondent had covered that very shift with the reply: “Hi shruti , thanks for letting me know” or that he would not have sent any WhatsApp messages querying shift allocation after that date and that his first clear WhatsApp message to the Respondent would then have been in mid-November asking for his payslip. In reaching this conclusion I have kept in mind that the Respondent had given the Claimant an ultimatum (that if he left his Saturday evening shift at GRC, he would not be given any further shifts there).[27]The Claimant clearly did suffer substantial delay in receiving payment of a substantial amount of money. However, neither his schedule of loss nor his witness statement detail the amount sought and he was not able to explain the amount sought or the basis for it when I asked him to clarify this during his evidence. It is clear that Ms Powell has lent or paid money to the Claimant (see in particular [RHB265 – 283]. I accept the Claimant’s evidence that payments from Eastgates and Powell were from Ms Powell as follows:27.115 October 2024 - £2,200 (Eastgatest) – this was the date on which payment was due and took the Claimant’s balance to +£4,872.99;27.25 February 2025 - £240 (Eastgates) – balance £458.7227.312 February 2025 - £245 (Eastgates) - balance £295.1427.418 February 2025 - £60 (Eastgates) - balance £199.09 13 of 2027.55 March 2025 - £500 (Eastgates) - balance £728.2427.611 March 2025 - £70 (Eastgates) - balance £192.7027.714 March 2025 - £20 (Eastgates) - balance £257.2027.87 May 2025 - £180 (Eastgates) - balance £210.6427.99 May 2025 - £980(Eastgates) - balance £1,404.0427.1012 May 2025 - £160 (Eastgates) - balance £712.05[28]The Respondent made good on what it owed the Claimant in mid-March. Payments from Ms Powell continued beyond May 2025.[29]However, there is no suggestion that Ms Powell has charged the Claimant interest or that this amounts to financial loss flowing from the Respondent’s failure to pay the Claimant’s wages. If anything, by lending the Claimant money, Ms Powell has helped the Claimant avoid financial loss that he might otherwise have suffered from the Respondent’s late payment (such as credit card interest, loan debt or mortgage or rent penalties).[30]It was also not in dispute that part of the Claimant’s difficulty was that after he had resigned from the Respondent he was not earning as much with Bridgegate as he had been with the Respondent.[31]When the Respondent sought to make payment to him in March 2025, the Claimant was resistant to receiving it because he wanted some sort of formal settlement. THE LAW Resignation or dismissal
THE LAW
[32]The question of whether the Claimant resigned or was dismissed is an objective one that I must determine after considering all the facts available to the parties at the time.[33]Martin v Glynwed Distribution Ltd [1983] ICR 511, CA (Sir John Donaldson MR 43) is Court of Appeal authority for the position that: ‘Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really terminated the contract of employment?” If the answer is the employer, there was a dismissal’[34]The corollary to this is that if the answer is the employee, then clearly there was a resignation.[35]There was no assertion, in the facts of this case, that the Claimant resigned in 14 of 20 circumstances where he was entitled to treat himself as having been dismissed because of a fundamental breach by the Respondent (constructive dismissal). The Claimant did not accept that he had resigned at all. Unfair Dismissal[36]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996. Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct or (98 (1) (b)) some other substantial reason of a kind such as to justify the dismissal or an employee holding the position which the employee held.[37]Under s98 (4) ‘… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.’[38]As such tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for the potentially fair reason in all the circumstances of the case. I have reminded myself that the question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my own decision for that of the Respondent, unless there is only one possible outcome from the application of the relevant legal principles to the case (London Ambulance Service v Small Court of Appeal [2009]).[39]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies to all the procedural and substantive aspects of the decision to dismiss a person from their employment. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, CA)[40]When considering the question of the employer’s reasonableness, I must take into account the disciplinary process as a whole, including the appeal stage (Taylor v OCS Group Limited [2006] EWCA Civ 702). The Tribunal must focus on what information and circumstances were present and in the mind of the dismissal and appeal managers at the time they made their decisions (West Midlands Coop v Tipton [1986]).[41]In reaching my decision, I must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question. A failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings. 15 of 20 Unauthorised deduction from wages[42]Section 24 of the Employment Rights Act 1996 (Determination of complaints) provides:(1) Where a tribunal finds a complaint under section 23 well-founded, it shall make a declaration to that effect and shall order the employer— (a) in the case of a complaint under section 23(1)(a), to pay to the worker the amount of any deduction made in contravention of section 13, (b) in the case of a complaint under section 23(1)(b), to repay to the worker the amount of any payment received in contravention of section 15, (c) in the case of a complaint under section 23(1)(c), to pay to the worker any amount recovered from him in excess of the limit mentioned in that provision, and (d) in the case of a complaint under section 23(1)(d), to repay to the worker any amount received from him in excess of the limit mentioned in that provision.(2) Where a tribunal makes a declaration under subsection (1), it may order the employer to pay to the worker (in addition to any amount ordered to be paid under that subsection) such amount as the tribunal considers appropriate in all the circumstances to compensate the worker for any financial loss sustained by him which is attributable to the matter complained of. ANALYSIS AND CONCLUSIONS[43]As I find that the Claimant resigned with immediate effect and was not dismissed, his claim for unfair dismissal and notice pay are not well founded and are dismissed.[44]As regards the Claimant’s claim for financial loss sustained by him which is attributable to the unlawful deduction, there is no basis on which I can made such an award.[45]The Claimant’s resistance to receiving payments from the Respondent after submitting his claim runs contrary to his argument that he was suffering financial loss through non-payment. For these reasons the Claimant’s wages act claim is not well founded and is dismissed. 16 of 20