Mr P Lillie v The Big Dog Pub Co Ltd: 6016032/2024
EMPLOYMENT TRIBUNALS
Case No 6016032/2024
Between
Mr Peter LillieClaimantThe Big Dog Pub Co LtdRespondent
Before
Employment Judge AspinallDate 6 February 2026
JUDGMENT
[1]The claimant’s complaint of constructive unfair dismissal succeeds.[2]The respondent is ordered to pay £ 23 591 to the claimant made up as follows: Basic award 1.5 x his gross week’s pay £533 x 10 years continuous service. £ 7995 Compensatory award SSP from EDT 19 August 2024 to 24 September 2024 6 weeks at £ 116.75 per week. 583 loss of earnings at full pay 4 October 24 until 1 March 2025. 11 304 loss of statutory rights. 500 ACAS uplift on compensatory award 3 209 ======= Total award 23 591[3]Recoupment provisions do not apply as the claimant was not in receipt of job seeker’s allowance, income related employment support allowance, income support or universal credit.[4]The claimant’s complaint of age discrimination proceeds to hearing. Approved for promulgation by JUDGMENT having been given orally on 6 February 2026 in the unfair dismissal complaint within this claim in the absence of the respondent and at the volition of the Judge in this part heard case in which age discrimination remains to be determined, the following reasons are provided Background[1]By a Claim Form dated 23 October 2024 the claimant brought a claim for constructive unfair dismissal. In his claim form he used the words “Vento Bands” and his attached document “Peter’s Story” he used the word discriminated but he had only ticked the box for unfair dismissal. An employment judge wrote to him to say that he had only claimed unfair dismissal and he confirmed that was the case.[2]The Tribunal served the claim at the address the claimant had given as his workplace being Dog and Partridge Hotel, Manchester Road, Warrington.[3]The respondent defended the complaint. It said the correct name for the respondent was not The Big Dog and Partridge Company Limited which the claimant had relied on in his claim form, nor The Dog and Partridge, which the claimant had relied on in his early conciliation certificate but was the Big Dog Pub Co Ltd and their contact name was Helen Riley. The address was given as The Dog and Partridge, Manchester Road, Warrington. The respondent was served notice of hearing originally for a hearing in September 2025, but when that was postponed, it was given notice of this hearing on 4, 5 and 6 February 2026.[4]On 2 February 2026 the Tribunal received an application for postponement from a liquidator who said that he had been instructed by the respondent to liquidate the company. Employment Judge Leach conducted a search of the register at Companies House found that the company was still active. He denied the postponement. The parties were informed and sent links to join the hearing. Opening discussion[5]The claimant attended and was supported by his sister in law, Mrs Lillie.[6]The respondent sent witness statements and a 173 page bundle of documents for use at the hearing but indicated its intention not to appear because the company was in liquidation. The claimant had sent witness statements and had a copy of the same paper bundle that had been sent to the tribunal electronically.[7]The claimant confirmed that he had all the documents that he needed the tribunal to see in that bundle.[8]I explained that I would need to hear evidence from the claimant but that no one from the respondent had attended to ask him questions. I explained that he would still have the burden of proof to me to show that he had been treated in such a way by the respondents that he was entitled to consider himself dismissed. I referred him to the relevant law in Malik explaining that he should tell me the bad things that have happened that had caused him to resign, that I would be looking for things that the respondent had done that were likely to seriously damage or destroy the relationship of trust and confidence between the parties without reasonable and proper cause. Identity of respondent[9]The claimant took me to a contract of employment in the bundle that showed Big Dog Pub Co Ltd as his employer. The respondent had confirmed in its ET3 that that was the correct identity of respondent. I checked companies house myself and found that the officer registered to that active company today, company number 15380406, was Helen Riley.[10]I adjourned to read the witness statements and bundle and told the claimant that I would write to the respondent and liquidator again informing them that the respondent was a live company at Companies House and the hearing was going ahead in their absence and that evidence would begin at 2pm and it was still not too late for them to join if they wished to. I directed that they were sent CVP links again.[11]A clerk sent that letter and those links. No one from the respondent joined the hearing. List of Issues[12]There was no list of issues. I took the claimant through his claim form. I explained that it would be helpful if he could focus on answering the following questions when he was giving evidence and when making his closing submissions. I did not intend these to stand in place of full consideration of the legal issues before me, but felt that this was a succinct summary to help the claimant. At this point I had read the witness statements and bundle and could see that issues arose in relation to fundamental breach, causation, affirmation, and on remedy contributory conduct and Polkey. I asked Mr Lillie to focus on:a. Tell me what they did that showed you they didn’t want you back as chef. (This related to his burden of proof in section 95(1)(c) ERA 96 and to Western Excavating v Sharp), and Malik and Omilaju and Kaur).b. Tell me why you waited so long to resign (this was to help me with legal points about causation of the resignation, and waiver of the breach or affirmation of the contract)c. Tell me why they wouldn’t have sacked you legally soon after 26 March 2024. (This was to address potential remedy and contributory conduct or Polkey points)d. Tell me why if you win I should give you more than, for example, one month’s pay, or the pay for the amount of time that they could have taken to dismiss you legally for capability because they believed that you could not cope as chef in the kitchen ? (This was because the claimant accepted he had struggled in the kitchen on 26 March 2024 and that customers had walked out and the respondent had paid refunds to them. He said it was because the kitchen needed more than one chef and that he was undertrained. It was his first shift alone on the new menu) Adjustments[13]The claimant was diagnosed with anxiety and depression after being badly treated at work. He was prescribed sertraline antidepressant and propranolol antianxiety medication in 2024.[14]The claimant did not require any adjustments today but I did have to proceed slowly, use non legal language, and adopt a very structured approach so as to support him to fully participate and give best evidence. Documents[15]The claimant and I each had the 173 page bundle (143 page numbers on the face of the page) which included witness statements.[16]The claimant had provided his own witness statement and there was a witness statement from Annabel Parker in the form of a signed letter dated 12 February 2025 and a signed letter from Jane Campbell dated 5 February 2025. He had not realised that he needed his witnesses to attend. It was not possible for Ms Parker to attend at late notice. Ms Campbell agreed to attend on the morning of day two. After hearing the claimant’s evidence on day one and after having read the respondent’s evidence that corroborated the claimant’s own case in places, I explained to the claimant that he need not call Ms Campbell but that I could attach such weight to her witness statement as I thought appropriate. We agreed that the approach for Mrs Parker. The claimant wanted to call Ms Campbell. She appeared on day two.[17]The respondent had provided witness statements for Christine Bracken, she was a cook who had been called in to help the claimant in the kitchen on 26 March 2024. There was a witness statement for Helen Riley, manager, who it was alleged had fundamentally breached the claimant’s contract. There was a witness statement for Patricia Carroll who was a kitchen porter who had witnessed events the claimant complained about and although a witness for the respondent corroborated the claimant’s position on certain key incidents. There was a witness statement from Andrew Rain who had worked front of house from 6pm onwards on 26 March 2024 and had witnessed the meeting at which the claimant says he was disciplined and suspended, corroborating the claimant’s position, and there was a statement from Angela Dickinson was also a chef who was called in to support the claimant during the afternoon of 26 March 2024.[18]The claimant agreed that I should read and attach such weight to the witness statements of the respondent as I thought appropriate. I also had regard to the content of its ET3 Response. Oral evidence[19]I heard oral evidence from the claimant. He swore to the truth of his witness statement and the content of his claim form including his attached “Peter’s Story” document. He answered supplemental questions from me focusing on the incidents which he relied on as fundamental breaches, the reasons for his delay in resigning, what he thought would have happened if the events of 26 March 2024 had not taken place, how long he thought he would have coped in the kitchen before he was dismissed for incapability, what he did to find another job.[20]The claimant said that by August 2024 he was in need of income and so being 65 years old decided to retire and draw his pension. He said that but for the events of 26 March 2024 he would have expected to continue to work until at least 67 years old.[21]I heard oral evidence from Jane Campbell. She corroborated the claimant’s account of the meeting with Helen Riley at around 2.30 pm on 26 March 2024. She heard Helen Riley make age related comments to the claimant and to her after he went off sick, about the claimant and retirement. The facts[22]The claimant had worked as a cook, chef and later head chef for over 45 years at the point of his resignation in August 2024. His employment with the respondent and its predecessor companies began on 4 November 2013. Following a series of TUPE transfers he came to be working at The Dog and Partridge pub in Warrington. His salary was £27,792 gross per annum.[23]In early 2024 the Dog and Partridge was closed for refurbishment. On five February 24 the claimant signed a new statement of main terms of employment with Big Dog Pub Co-Ltd which recorded his job title as Head Chef. The statement of terms and conditions referred to entitlement to statutory notice, statutory sick pay and to a Grievance Procedure.[24]The relevant extract of the grievance procedure provided 25. if you wish to make a formal grievance it must be set out in writing…….. The meeting will be held usually within five working days of you raising a grievance….. The meeting will enable you to give full details of your grievance…. You are entitled to be accompanied by a fellow employee or accredited training union official at the grievance meeting.[26]If your grievance is about the person to whom your complaint relates you should raise it with our more senior member of management or if not possible another member of management at the same level. After the meeting the manager will inform you of their decision in writing in response to the grievance. You have the right to appeal against this decision.[27]There was also Disciplinary Rules. Underperformance, not being able to cope on a busy shift did not feature in the list of misconduct or gross misconduct examples given. There was a Disciplinary Procedure. It provided28. before considering a warning or dismissal steps will be taken by the company to establish the facts29. at any stage of the Disciplinary Procedure you may be suspended on full pay whilst investigations are carried out30. suspension is a holding measure is not to be taken as an indication that the allegations against you will be substantiated31. in the event that you become unfit for work or unable to attend any necessary meetings due to sickness during the period of suspension the company will review the decision to keep you on suspension following this review your suspension may be lifted. If your suspension is lifted you may no longer be entitled to full pay will be entitled to statutory sick pay…[32]If it’s necessary for the company to take action under the Disciplinary Procedure you will be issued with a written statement setting out the nature of the conduct or the circumstances that may result in a disciplinary warning or dismissal. 33.[34]You will only be issued with a disciplinary warning or dismissal following a formal disciplinary meeting at which you will have been given the right to be accompanied by a fellow employee or accredited trade union official.[35]Throughout the disciplinary procedure will be given the opportunity to respond to any complaint before any decision on a disciplinary warning or dismissal is taken.[36]There was also a Capability Procedure. It provided that the employer recognised that capability to carry out duties may deteriorate and this can be for a number of reasons, the most common ones being that either the job changes over a period of time and you failed to keep pace with the changes or you change and can no longer cope with the work. The policy provided that it would take account of length of service. It said 37. if the nature of your job changes or if we have general concerns about your ability to perform your job well we will try to ensure that you understand the level of performance expected of you and that you receive adequate training and supervision. Concerns regarding your capability will normally first be discussed in an informal manner you will be given time to improve. If your standard of performance are still not adequately warned in writing that a failure to improve and to maintain the performance required quickly to your dismissal. We will also consider the possibility of a transfer to more suitable work if possible. 38.[39]Training took place between 12 and 18 February 2024 off site for the claimant and others. He attended a one day cook-off in a pub in Melling and observed chefs working to the new menu. It was an extensive menu, with over 44 items as compared to the previous menu with around 20 items. The pub reopened on 21 March 2024. The claimant worked the opening day Thursday 21st March and was one of four chefs that day himself, Angela, Jane and one other. On Friday 22nd March he also worked and was again one of four chefs. On Saturday 23rd March he worked and was this time one of five chefs on shift. On Sunday 24 March he worked and was one of three chefs on shift. The opening weekend had gone well, there had been no problems, no refunds, the service was good and the orders had been turned around quickly with each chef working on their own station On Monday, 25 March 2024 the claimant had a day off.[40]Jane Campbell was the chef on Monday 25 March 2024. She had worked as a chef at the pub for nine years before the changes in March 2024 and she had always cooked and served fresh ingredients. She had had one day’s training with the claimant off site before the reopening. She struggled to keep up with the orders on 25 March 2024 because the new concept was that there was a huge manual that had to be followed for every order. Food was prepacked, frozen and had to be reheated and weighed to the gram and sent out in accordance with the instructions in the manual. Monday was a quiet day and she had told Helen Riley that she was struggling to keep up.[41]On Tuesday 26 March 2024 the claimant came into work and was the only chef on shift. This was to be his first time working alone on the new menu. There was a kitchen porter, Pat, on shift but her job was to clear and not to prepare and send out orders. The claimant was in from 10:30 am. The kitchen opened at 12 noon and within 10 minutes the claimant realised that he was going to struggle to meet the volume of orders that were coming in. He informed his manager Helen that there was going to be a problem and asked if no more orders could be placed for around 10 minutes so that he could catch up. Helen said no, she shouted; both volume and anger, said he didn’t have many orders and told him that he should be able to cope. Food orders continued to come in and the claimant quickly became overwhelmed with orders. Around 12.30 a customer sent a beefburger order back to the kitchen saying it was undercooked. The claimant accepted that it was undercooked. He had been hurrying as Helen had told him to. The customer was given a refund.[42]The claimant’s partner Mike who was not employed by the respondent but was on site helping out, came into the kitchen, was visibly angry, stood very close to the claimant beside his left ear and shouted into it call yourself a chef, what the hell is going on, why is food coming back ? The claimant was afraid that Mike was going to be violent towards him. Mike was so angry and loud that the claimant felt discomfort in his ear and could not hear properly after that. Helen came into the kitchen and ordered her partner to leave. Helen told the claimant at this point that people were leaving and again seeking refunds and that he would have to pay for the refunds out of his own wages.[43]At around 2pm Helen came into the kitchen and shouted at the claimant asking what was wrong with him and saying that an 18-year-old would be able to do the job better than him, and that she could get an agency staff cook to do the job cheaper than him. The claimant explained that he was on his own and that he needed more training and more chefs on shift. Helen agreed to call for help. It was apparent that the orders were backing up and customers were dissatisfied. Helen arranged for Jane and Angela to come in and provide support. By 2:30pm customers were so dissatisfied that they were seeking refunds and leaving. Lunch service finished and Jane, the catering supervisor and Angela, another chef supported the claimant to prepare for evening service.[44]Helen sat the claimant down with Jane and Angela and threatened the claimant that this had better not happen again. Mike came in and said that if he had his way he would sack the claimant there and then. Jane heard Mike say this to the claimant. Helen told Mike to leave the meeting. She said an 18 year old could do this job on his own. The claimant felt so humiliated that he was speechless. Jane heard Helen Riley say to the claimant a youngster could do this on their own.[45]When Helen left he worked with Jane and Angela to stock fridges, prepare salads and prepare for evening service. Jane and Angela left at around 4:30 PM. Christine, who the claimant had not met before but who he understood was a chef, then arrived to support him. Helen explained the menu to Christine in about 10 minutes. Orders started coming in at around 5 PM and the claimant could quickly see that Christine did not know her way around the kitchen and was of little if any help to him. The orders were quickly backing up.[46]Helen again came into the kitchen and shouted at the claimant saying this should not be happening, you’ve only got starters on, I’ll have to pay out for this, if I had my way I’d send you home.[47]He again explained that he needed more staff. Christine was not really helping, just watching him, and did not seem to know her way around the kitchen. The claimant felt humiliated and undermined. He was very shaky but continued to try hard to get the orders out. He was having to cover starter station, side dishes station, main dishes station and cooking.[48]At around 6:50 PM the claimant’s partner Mike came into the kitchen again and was again shouting in the claimant’s ear, invading his personal space and making him feel physically afraid. The claimant was so shaken by this that he was unable to speak, and was struggling to hear in his left ear. Helen again came and told Mike to leave the kitchen.[49]The claimant continued to work doing his best during a fraught evening service. Meals were being returned because customers had waited too long for their food. Helen came in and told the claimant that he would have to pay for all the refunds out of his wages.[50]Following evening service Helen brought the claimant into the office at around 8.30pm and told him that she was asking Andy from front of house to come in to be a witness to what she wanted to say. Helen said that this was a disciplinary meeting. Helen asked the claimant how long he had been a chef. She already knew the answer to this question so the claimant felt she had asked it to expose his age and to humiliate him. He said over 45 years. He explained that he was sorry how the service had gone but that more chefs were needed. He said the menu was new and double the size of the previous menu, the equipment and the kitchen was new and that he needed more training.[51]Helen said I don’t want you back in the kitchen as a chef, I can offer you a job as a kitchen porter, on national minimum wage part time, you are costing the company money, losing us money because of the refunds. The claimant was shocked and physically shaking. Helen then presented him with a document and asked him to sign it. He was not clear if this was a new employment contract as a porter or a note of the disciplinary meeting. The claimant refused to sign. The claimant was too upset to be able to speak. He has not seen that document since. It was not included in the bundle.[52]At the end of the meeting Helen said this had been a disciplinary meeting and that he should consider himself suspended. She told him to collect his personal belongings and to leave and wait to be contacted by her. The claimant went home very worried and not sure if he would ever be allowed to return.[53]On 27 March 2024 Helen contacted the claimant to say that she had been in touch with her solicitors and that they would be in touch with him within four days regarding his disciplinary. She told the claimant not to contact her directly. The claimant was physically shaking and felt sick.[54]On 28 March 2024 Helen contacted the claimant again. She said that she had stopped the disciplinary action after speaking to Jane and Angela and that the claimant could come back but he would be put on part-time hours on minimum wage and work Friday, Saturdays and Sundays only. The claimant said that he could not agree to that. He said that after what happened on 26 March he was in no fit state to work.[55]The claimant then received a call from Angela seeking to persuade him that he would not be left on his own in the kitchen again and that he should return. The claimant said he felt uneasy talking to Angela or Helen on the phone after the way he had been treated and that he was unwell.[56]On 1 April 2024 Angela again telephoned the claimant this time asked how he was. He explained he was unwell, was going to see his doctor and had lost all his confidence. He explained he was not well enough to return to work.[57]Helen then rang the claimant to say that she needed figures from him for her accountant; she needed the hours that he had worked whilst on training from 11 March 2024 until “he had left” on 26 March 2024. The claimant was worried that Helen was now trying to portray this as(i) him being an hourly worker when in fact he was a salaried worker and(ii) his having decided to leave. He provided her with his hours.[58]Helen contacted him by text saying[59]I’ve updated the solicitor that we spoke on 28 March at 1132 and discussed stopping the disciplinary action and that you agreed you had no confidence in returning but that we discussed meeting in the middle ground with you coming back in a different role… We just need to finalise[60]The claimant was appalled by that message. He had not agreed to come back in a different role. He was diagnosed as suffering stress anxiety and depression because of what had happened at work on 26 March 2024. The claimant was prescribed antidepressant and antianxiety medication and signed unfit for work for four weeks. He had never previously in his life in prescribed antidepressant or antianxiety medication.[61]The claimant informed Helen about the fit note. Helen said that she couldn’t pay the claimant whilst he wasn’t coming in and that she was going to continue with the disciplinary action. He was afraid that he would not be paid at all whilst off sick.[62]On 4 April 2024 the claimant received another text from Helen. It said 63. hi we will be sending your letter re the disciplinary action to arrange a date for the hearing, obviously you’re fit note says anxiety and stress we do not wish to stress you further but we also need to resolve the matter. As the suggested and agreed action is now not going to happen unless it is your plan to follow that path once your four weeks sick leave is over I will send the letter over tomorrow by recorded delivery, if you can then please update me[64]The claimant saw this as a clear threat that if he did not agree to demoted role as kitchen porter he would face disciplinary action.[65]Whilst the claimant was off sick Helen Riley talked about him to Jane Campbell. Helen told Jane He has gone off sick and is trying to string this out to retirement. I will go bankrupt before I will pay him a penny.[66]Jane Campbell resigned her role as chef at the end of April because she was not happy about they way that food that was being prepared under the new concept; that it was all pre packed frozen branded food that was weighed out to the gram and reheated. She had worked for 9 years with the claimant at the pub preparing fresh ingredients and did not want to work as the kind of chef that sends out reheated prepacked food.[67]On 15 April Helen again texted the claimant saying where are you up to healthwise Peter? I know there are a couple of weeks left on your sick note. The offer to work alongside Ange and the kitchen team still stands[68]The claimant was so concerned about his employment that he contacted Warrington Citizens Advice Bureau and got some help. His employment specialist adviser wrote to the respondent on his behalf on 24 April 2024. Her letter set out that the claimant was currently suspended from role as head chef in the disciplinary action being taken against him. Helen Riley replied immediately saying I’m actually just in a meeting but he’s not suspended… We said we would continue with a disciplinary but as he was unwell decided to allow time to get better[69]The claimant went back to his doctor on 25 April 2024 and the doctor increased his Propranolol medication dose by three times and increased his sertraline to 50 mg per day. The doctor signed the claimant unfit for work until 17 July. On 5 July the claimant again saw his doctor and following discussions the doctor provided a fit note until 4 October 2024.[70]On 1 May 2024 the claimant supported by CAB sent a formal written grievance to Helen Riley complaining about bullying, harassment, being threatened (by Mike) and about being required to attend a disciplinary meeting without warning, without opportunity to be accompanied in line with Disciplinary Policy.[71]Helen Riley replied the next day denying that the claimant had been suspended or that any disciplinary action had been taken. She said No one shouted at your or bullied you in the seven hours up to Mike speaking with you and I disagree that you were threatened or bullied then.[72]Three times in her response she alluded to the claimant having had over 50 years experience as a chef. She accepted Mike…did raise his voice in the end in sheer frustration and was potentially closer than he needed to be but he was reacting to your attitude, your ignoring him and refusing to engage…I watched you completely blank Mike.[73]She denied having conducted a disciplinary hearing but said I did intend to go down the disciplinary route and I deeply regret not doing so… We tried very hard to find a way forward….not allowing to actually cook.. which you agreed to until you and we were confident you could manage. we, I believe, reached a compromise whereby you could get the training you said you needed still be paid for hours worked, still have the support of the team… You then chose to go to the doctor, chosen to take the path of anxiety and believing this unsupported and biased version of the facts…. You, Peter, are nearly retirement age and have made no bones of the fact that you can’t wait for that. I am now concerned you intend to spin this out until you can retire but I cannot be any clearer I am still prepared to bring you back in and provide training and support if you would like to do so. As for head chef Peter, that is a self bestowed title,….. I know of no positions that will be available to you at your current level of confidence…. We have offered to help and support you and offer training courses for your benefit so that you finish your career working……[74]In relation to allegations about feeling bullied by Mike, Helen Riley said if the suggestion is that I dismiss Mike that would be incredibly hard to do as he does not work for me. He is my partner and works independently, again Peter, you are well aware of this. At this point I’m prepared to state again the position is open, the ball is in your court if you want to take up the offer….. I will not be tarred as a bad employer, I will not have aspersions cast upon me and I am prepared to see this through. I do not run a bad company we have a friendly cooperative team and this is as much as it has been for Peter been deeply distressing for me.[75]CAB responded on 8 May 2024 on behalf of the claimant, refuting much of what Helen Riley had said and stating… I was 65 years of age and my intention was to continue to work as long as I could, that is still my intention. The letter concluded I do feel that our relationship has broken down as a direct result of the way in which I have been treated.[76]Helen Riley replied I’m done with this now… All papers will be passed to Cronin and I will copy you in[77]On 15 May 2024 Helen Riley wrote we are not looking to take forward the implied suggestion further in relation to a settlement agreement the company grievance procedure is in the supplied Handbook and this is encouraged to be used if you would like to raise any concerns you have so that the company can investigate and reach resolution where possible we the company have followed the company absence management process[78]CAB replied on 29 May 2024 stating that the claimant had lodged a grievance on 2 May 2024 and that they would have expected an independent manager to be appointed to conduct an investigation, to meet the claimant. The letter said that the claimant was still in no fit state to attend an investigatory interview into his own grievance. The letter asked whether an investigation had taken place without the claimant and if so what the outcome was of the investigation.[79]On 19 June 2024 Helen Riley wrote a letter entitled “grievance hearing outcome”. From the content of that letter it appears that Helen Riley decided to investigate the grievance herself, reached conclusions herself without having met the claimant or interviewed any witnesses, and she reached conclusions that the claimant’s complaints(i) of his treatment by Mike,(ii) respondent’s failure to train him properly or for long enough,(iii) unfair treatment on 26 March and(iv) being called to a disciplinary hearing with no notice, and(v) the treatment to isolate him and suspend him were all rejected. The outcome of his grievance was that the grievance was not upheld.[80]Helen Riley wrote in the grievance outcome letter it is my belief that a chef of your experience and standing should be able to carry out a lunchtime and/or evening service even more so with the menu you were to follow which is designed in such a way that a competent cook can manage on their own.[81]At the respondent’s request the claimant then completed a well-being questionnaire. He recorded in that questionnaire that he was anxious and stressed and becomes completely distressed when he thinks of the events of 26 March 2024. He said that he felt discriminated against. He set out that he was on prescribed medication sertraline and propranolol.[82]The claimant was at this time receiving only statutory sick pay despite having been suspended.[83]On 25 July 2024 Helen Riley again wrote to the claimant this time her letter was headed welfare meeting. She invited him to attend a welfare meeting to discuss his continued sickness absence. She said the meeting would take place at the pub on 19 August. The agenda for the meeting included consideration of alternative employment/job roles to assist your return to work and ongoing employment[84]On 19 August 2024 the claimant resigned he said I’m unable to face your invite to meet to discuss my sickness absence and feel I have no other alternative but to resign from my position due to the way I was treated on 26 March 2024 just left severely traumatised and I continue to be under medical care as a result. I believe the relationship has irrevocably broken down and I consider your conduct to be a fundamental breach of the employment contract on your part in particular the duty of trust and confidence, I resign as a result of the fundamental breach of my employment contract and consequently my resignation constitutes constructive dismissal[85]On 27 August 2024 Helen Riley acknowledged receipt of the resignation letter and said I would welcome the opportunity to discuss the points raised with you as soon as possible[86]She said that she had arranged a grievance hearing on 9 September 2024 at the pub. The claimant did not attend. He was too unwell and had resigned.[87]The claimant would have stayed in work for the respondent as a chef until he was 67 years old. He would have expected to have had more training time to work on the new menu in a real setting and not the training event which was an event with multiple chefs and a practice run and was not in his kitchen, and not for there to be just one chef on a menu with 44 items and a busy service. He would have expected the respondent not to have shouted at him and humiliated him but to have put him on a rota with other chefs, adequately staffing the kitchen until all chefs were familiar enough with the new menu to start reducing chef numbers. He would have expected not to have been suspended and told he was to be demoted after one busy service in which he had been overwhelmed with orders and which he says no one chef could have coped with.[88]The claimant went to ACAS on 28 August 2924 and achieved his certificate on 1 October 2024.[89]I make no findings as to the impact of the age related comments or whether any of the incidents found factually above were motivated by age at this stage. Relevant Law[90]The claimant’s unfair dismissal claim was brought under Part X of the Employment Rights Act 1996. Section 95(1)(c) provides that an employee is dismissed by his employer if: the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”[91]The principles behind such a “constructive dismissal” were set out by the Court of Appeal in Western Excavating (ECC) Limited v Sharp [1978] IRLR 27. The employee is entitled to treat himself as constructively dismissed only if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.[92]The term of the contract upon which the claimant relies in this case was the implied term of trust and confidence. In Malik and Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606 the House of Lords considered the scope of that implied term and approved a formulation which imposed an obligation that the employer shall not: “…without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”[93]The test is an objective one in which the subjective perception of the employee can be relevant but is not determinative. Lord Nicholls said “The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer. That requires one to look at all the circumstances.”[94]The objective test also means that the intention or motive of the employer is not determinative. An employer with good intentions can still commit a repudiatory breach of contract. In Frenkel Topping Limited v King UKEAT/0106/15/LA21 July 2015 the EAT chaired by Langstaff P put the matter this way (in paragraphs 12-15): “12. We would emphasise that this is a demanding test. It has been held (see, for instance, the case of BG plc v O’Brien [2001] IRLR 496 at paragraph 27) that simply acting in an unreasonable manner is not sufficient. The word qualifying “damage” is “seriously”. This is a word of significant emphasis. The purpose of such a term was identified by Lord Steyn in Malik v BCCI [1997] UKHL 23 as being: “… apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”13. Those last four words are again strong words. Too often we see in this Tribunal a failure to recognise the stringency of the test. The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the Appeal Tribunal, presided over by Cox J in Morrow v Safeway Stores [2002] IRLR 9.14. The test of what is repudiatory in contract has been expressed in different words at different times. They are, however, to the same effect. In Woods v W M Car Services (Peterborough) Ltd [1981] IRLR 347 it was “conduct with which an employee could not be expected to put up”. In the more modern formulation, adopted in Tullett Prebon plc v BGC Brokers LP & Ors [2011] IRLR 420, is that the employer (in that case, but the same applies to an employee) must demonstrate objectively by its behaviour that it is abandoning and altogether refusing to perform the contract. These again are words which indicate the strength of the term.15. Despite the stringency of the test, it is nonetheless well accepted that certain behaviours on the part of employers will amount to such a breach. Thus in Bournemouth University Higher Education Corporation v Buckland [2010] ICR 908 CA Sedley LJ observed that a failure to pay the agreed amount of wage on time would almost always be a repudiatory breach. So too will a reduction in status without reasonable or proper cause (see Hilton v Shiner Builders Merchants [2001] IRLR 727). Similarly the humiliation of an employee by or on behalf of the employer, if that is what is factually identified, is not only usually but perhaps almost always a repudiatory breach.”[95]In some cases, the breach of trust and confidence may be established by a succession of events culminating in the “last straw” which triggers the resignation. The decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 demonstrates that the last straw itself need not be a repudiatory breach as long as it adds something to what has gone before, so that when viewed cumulatively a repudiatory breach of contract is established. However, the last straw cannot be an entirely innocuous act or be something which is utterly trivial. The Court of Appeal affirmed these principles in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978.[96]In 2020 Auerbach HHJ in the Employment Appeal Tribunal in Williams v The Governing Body of Alderman Davies Church in Wales Primary School applied Omilaju and Kaur: “28. The starting point is that there will be a constructive dismissal, that is to say an dismissal within the meaning of section 95(1)(c) of the Employment Rights Act 1996 where a) there has been a fundamental breach of contract by the employer b) which the employee is entitled to treat us terminating the contract of employment and c) which has materially contributed to the employee’s decision to resign. As to the first element, the fundamental breach may be a breach of the Malik term. That may come about either by a single instance of conduct, or by conduct which, viewed as a whole, cumulatively crosses the Malik threshold. As to the third element, the conduct amounting to a repudiatory breach does not have to be the only reason for resignation, or even the main reason, so long as it materially contributed to, or influenced the decision to resign. 30. If there has been conduct which crosses the Malik threshold, followed by affirmation, but there is then further conduct which does not, by itself, cross that threshold, but would be capable of contributing to a breach of the Malik term, can the employee then treat that conduct, taken with the earlier conduct, as terminating the contract of employment?[97]The answer comes at paragraph 34. 34. .. so long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it, has not been lost and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent conduct has also contributed to the decision to resign. It would be true in such a case that in point of time it will be the later conduct that has “tipped” the employee into resigning: but as a matter of causation, it is the combination of both the earlier and the later conduct that has together caused the employee to resign..[98]A resignation in response to the employer’s conduct must be made in unambiguous words. The words can be informal or imperfect and can be taken at their face value without the need for analysis of the surrounding circumstances.[99]Section 95(1)(c) provides that the employee must terminate the contract by reason of the employer’s conduct. The question is whether the repudiatory breach played a part in the dismissal. It need not be the sole factor but can be one of the factors relied on. If, however, there is an underlying or ulterior reason for the employee’s resignation, such that he or should would have left anyway irrespective of the employer’s conduct, then there has not been a constructive dismissal.[100]Where there are mixed motives the tribunal must decide whether the employer’s conduct was an effective cause of the resignation. The law relating to the reason for a resignation after a repudiatory breach was reviewed by the EAT (Langstaff P presiding) in Wright v North Ayrshire Council [2014] IRLR 4. If an employee has mixed reasons for resigning it is enough if the repudiatory breach played a part in that decision. It need not be the sole, predominant or effective cause. That is particularly clear from the decision of the Court of Appeal in Nottingham County Council v Meikle [2005] ICR 1. At paragraph 20 of Wright Langstaff P summarised it by saying “Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”[101]An employee who remains in employment whilst attempting to persuade the employer to remedy the breach of contract will not necessarily be taken to have affirmed the contract W E Cox Turner (International)Limited v Crook [1981] IRLR 443.[102]Section 207(A) Trade Union and Labour Relations (Consolidation) Act 1992 provides that, where an employee brings a claim under section 111 Employment Rights Act 1996 for unfair dismissal, an award for compensation can be increased or reduced by up to 25% if the employer has unreasonably failed to comply with the relevant code of practice relating to the resolution of disputes.[103]The relevant code of practice will have been issued either by ACAS or the Secretary of State. ACAS Code of Practice 1: Disciplinary and Grievance Procedures 2015 is a relevant code of practice. The ACAS code is not engaged unless a grievance is raised in writing.[104]The ACAS code provides the following keys to handling grievances in the workplace ▪ let the employer know the nature of the grievance ▪ hold a meeting with the employee to discuss the grievance ▪ allow the employee to be accompanied at the meeting ▪ decide on appropriate action ▪ allow the employee to take the grievance further if not resolved[105]In relation to deciding on appropriate action the code provides that a decision should be communicated to the employee, in writing, without unreasonable delay and, where appropriate, should set out what action the employer intends to take to resolve the grievance. The employee should be informed that they can appeal if they are not content with the action taken. Applying the Law[106]The claimant was dismissed by the respondent which had treated him in such a way as to destroy the relationship of trust and confidence between them, entitling him to resign.[107]The effective date of termination was the date of communication of his resignation on 14 August 2024.[108]The conduct viewed cumulatively that amounted to a repudiatory breach was Helen Riley’s conduct as follows: Incident 1: on 26 March 2024 telling the claimant he would have to pay for refunds out of his wages[109]The Tribunal accepts the claimant’s oral evidence on this point. Whilst the respondent did not attend, the Tribunal had regard to the witness statement of Helen Riley who disputed that this was said. The Tribunal prefers the evidence of the claimant given on oath. The Tribunal notes the WhatsApp messages and documents within the bundle that Helen Riley expresses concern about money to the claimant. She produced details of the refunds within the bundle. She made reference to not paying the claimant whilst he was off sick in WhatsApp message that she sent. She sought to demote the claimant from Head Chef to a kitchen porter on an hourly paid rate working national minimum wage part-time set out in the message she wrote, and whilst the claimant was suspended and should have been paid full pay she paid him only sick pay as is shown in payslips provided in the bundle.[110]The Tribunal also notes the evidence of Jane Campbell given on oath that on the afternoon of 26 March 2024 Helen Riley told the claimant in her presence that she could get an agency cook, a “youngster”, to do the claimant’s job cheaper. The tribunal also accepts the evidence of Jane Campbell that Helen Riley was angry with the claimant on 26 March 2024. Taken together, the Tribunal finds that Helen Riley told the claimant he would have to pay for the refunds out of his wages. Incident 2: on 26 March 2024 at around 2pm saying that an 18-year-old would be able to do the job better than him, saying that she could get an agency staff cook to do the job cheaper than him[111]The claimant has been consistent in his ET1 and witness statement and on oath about that having been said to him. The Tribunal accepts his evidence. Incident 3: repeating in front of Jane Campbell that she could get an 18 year old, a “youngster” to do the job on his own[112]The Tribunal accepts the evidence of the claimant and Jane Campbell on this point. Incident 4: on 26 March 2024 at the start of the evening service Helen shouting at the claimant saying if I had my way I’d send you home[113]The Tribunal had regard to the witness statement of Helen Riley where she says she is not a shouty person. It prefers the evidence of the claimant given on oath that she did shout supported by the evidence of Jane Campbell that Helen Riley was angry with the claimant. Incident 5: failing to prevent Mike from shouting at the claimant for the second time that day[114]The Tribunal accepts the claimant’s oral evidence about Mike shouting at the claimant on two separate occasions on 26 March 2024 as set out in fact above. This evidence is corroborated by Helen Riley who accepts in her witness statement “Mike did yell”. Helen Riley, having been aware that Mike had shouted at the claimant and said that if he had his way he would sack him, should have prevented further aggression from Mike towards the claimant that day. Incident 6: on 26 March 2024 Helen repeating the claimant would have to pay for all the refunds out of his wages[115]The Tribunal repeats its reasoning above as to why it believed the claimant’s oral evidence that Helen Riley said the claimant would have to pay for refunds out of his wages. Incident 7: on 26 March 2024 at around 8:30 PM calling the claimant into a disciplinary meeting without giving him notice of that meeting, without giving warning of the contents in terms of allegations to be discussed at that meeting, and without telling the claimant of his right to be accompanied at such a meeting. At that meeting, asking how long he had been a chef when she already knew the answer to the question[116]The tribunal accepts the claimant’s oral evidence about the circumstances of the disciplinary meeting. It accepts he was called in without notice, not told that he had a right to be accompanied and that he left that meeting having been told he would no longer be Head Chef. It was a meeting that led to a sanction being imposed on him, that of removal of his duties. The Tribunal notes the witness statement of Andrew Rain in which he confirmed that he was asked to attend the meeting as a witness because it was to be a disciplinary meeting. Incident 8 on 26 March 2024 saying I don’t want you back in the kitchen is a chef, I can offer you a job as a kitchen porter national minimum wage part time[117]The Tribunal accepts the claimant’s oral evidence that Helen Riley had made it clear to him that she did not want him back in the kitchen as Head Chef. Helen Riley subsequently set this out in writing to him herself in her messages making repeated references, as set out in the facts above, to him working in a kitchen porter role part-time national minimum wage working Friday Saturdays and Sundays only. Incident 9: on 26 March 2024 suspending the claimant and telling him to collect his personal belongings and leave[118]The Tribunal accepts the claimant’s oral evidence that he was suspended from his role as Head Chef at the meeting on 26 March 2024 was not told what was the disciplinary allegation that he was to face. It accepts his oral evidence that the word suspension was used. It had regard to Helen Riley’s message to CAB on 24 April 2024 in which she says, he is not suspended. The Tribunal rejects the respondent’s written position that the claimant was not suspended. He was suspended by Helen Riley on 26 March 2024, told to get his belongings and leave and that he she did not want him back as Chef. The claimant ought to have been paid full pay from the date of his suspension. He was not, pay was withheld. The claimant did not bring a complaint of unlawful deduction from wages nor breach of contract so there is no complaint that the Tribunal can determine in relation to the non payment but it has been persuasive in support of the claimant’s oral evidence about Helen Riley telling him the refunds would come out of his pay as it shows her to be someone who did not pay the full pay to which he would have been entitled whilst suspended. The position changed when he went off sick as there was then discretion within the respondent’s policy to remove full pay and pay sick pay only. Incident 10: on 27 March 2024 telling the claimant that solicitors would be in touch with him regarding a disciplinary and that he was not to contact her directly.[119]The Tribunal accepts the claimant’s oral evidence of this corroborated by the written communication from Helen Riley. She referred to solicitors and a disciplinary and the claimant found this threatening. She had removed him from his duties and was telling him he could not contact her directly. Incident 11: telling the claimant that he could come back to work on part-time hours on minimum wage Friday Saturdays and Sundays, effectively removing him as head chef.[120]The Tribunal accepts the claimant’s oral evidence again corroborated by written communication from Helen Riley that the terms on which he could return were to a demoted role. Incident 12: on 1 April 2024 contacting the claimant suggesting that he had left, and asking for hours suggesting that she was only going to paying for an hourly paid rate[121]The Tribunal accepts the claimant’s oral evidence corroborated by written communication of from Helen Riley. This communication was sent at a time when Helen had told the claimant not to contact her and had threatened him with solicitors and disciplinary action. Incident 13: misrepresenting that there had been a discussion in which the claimant had agreed to come back in a different role[122]The Tribunal accepts the claimant’s evidence that he had never agreed to go back to any role other than Head Chef. It accepts his evidence that Helen Riley was seeking to misrepresent the position. She had made it clear to him on 26 March 2024 that she did not want him back and had restated that position in her written messages offering that he take a kitchen porter role on national minimum wage part time. The Tribunal finds that Helen Riley attempted in this communication to muddy the waters, to pull back from her stated position of not allowing him back to his role as Head Chef by suggesting that there had been some consensual agreement come back in a different role. The Tribunal finds no such agreement was reached. Incident 14: telling the claimant that she couldn’t pay him whilst he wasn’t coming in (i.e. indicating that he would not even receive statutory sick pay)[123]The Tribunal saw Helen Riley’s written communication on this point and finds that it is an attempt to exert pressure over the claimant, by threatening to withhold pay, to get him to agree to demoted role. Incident 15: texting the claimant on 4 April 2024 threatening that as the claimant would not agree to a demoted role disciplinary action would be reinstated against him[124]The Tribunal accepts the claimant’s oral evidence on this point and finds it is a further attempt to exert inappropriate pressure over the claimant who was off sick. Incident 16: on 15 April restating the offer to work in a demoted role[125]The Tribunal repeats the reasoning above in relation to the withdrawal of the claimant’s Head Chef duties and insistence that he return in a demoted role. Incident 17:A: on 2 May 2024 dealing with the grievance herself and reaching conclusions on it without an impartial investigation and grievance hearing[126]The Tribunal saw the relevant extracts of the respondents Grievance Policy and Procedure. The Tribunal finds that the 2 May 2024 communication from Helen Riley was an unreasonable failure to follow the procedure and the ACAS code. She had not appointed an investigator who was impartial. The claimant had not been interviewed about the grievance. The content of the 2 May communication shows the Tribunal that Helen Riley had prejudged his grievance. 17B referring to the claimant’s age and saying in relation to sickness absence I am now concerned you intend to spin this out until you can retire[127]The Tribunal saw the written communication from Helen Riley on this point as set out in the facts above. It finds that the claimant had not said that he wanted to retire at 65. He was 65 on 3 September 2023, so that when the events of March to August 2024 happened he was already 65 and would have been able to retire. The Tribunal finds it not credible of Helen Riley to suggest that he was not able to retire in 2024 and was stringing out his sickness absence to reach a retirement date. It had been his intention to carry on to 67 until the events of 2024. 17C referring to the claimant’s job title in his contract of employment as a self bestowed title[128]The Tribunal accepts the claimant’s evidence that he was Head Chef. The Tribunal saw the claimants written Statement of Particulars which recite his job title as Head Chef. The Tribunal finds that describing the claimant’s job title as a self bestowed was untrue and malicious. 17D restating that the claimant would not return as head chef when she said I know of no positions that will be available to you at your current level of confidence[129]The Tribunal saw the written communication from Helen Riley. Those communications taken together with the words she used on 26 March 2024 make it clear that she had no intention of allowing the claimant to remain employed as Head Chef. In this communication she has effectively removed the claimant’s job title, job role and duties from him.[130]Helen Reilly’s position that the claimant cannot return as Head Chef , first stated on 26 March 2024 and repeated later, and her insistence that he return in a demoted role amounts to repudiatory breach of his contract of employment. Helen Riley had no reasonable or proper cause for removing his duties and title from him and no reasonable or proper cause for paying him less than full pay whilst suspended and before his fit note was submitted. 17E restating the demoted role[131]The Tribunal repeats its reasoning from above on repudiatory breach. Incident 18: on 19 June 2024 purporting for a second time to provide a grievance outcome without having had the grievance investigated, without having interviewed the claimant about his grievance, without any impartial handling of the grievance or grievance hearing[132]The Tribunal accepts the claimant’s oral evidence that he was never invited to an investigatory interview in his grievance. The Tribunal accepts his oral evidence that the Grievance Procedure applied to him and that he ought to have had his grievance decided by someone impartial following a reasonable investigation, investigatory interview and grievance hearing. In deciding this grievance herself, initially on 2 May 2024 and then in this written outcome dated 19 June 2024, and in failing to afford the claimant an independent investigation and impartial decision maker, Helen Riley acts in breach of ACAS Code and in a way that is likely to seriously damage the relationship of trust and confidence between the parties without reasonable and proper cause for doing so. Incident 19: on 25 July 2024 inviting the claimant to a meeting purported to be a welfare meeting at which there would be consideration of alternative employment[133]The Tribunal repeats its reasoning about the claimant being removed from his role as Head Chef and the repeated offers of the demoted role. This was the last straw act for the claimant. He had been unwell and tried to disregard Helen’s threats and removal of his duties and offer of a demoted role. It was this email that showed him that she was not going to allow him to come back in anything other than an alternate role.[134]The Tribunal finds that incidents 8, 11, 14, 15, 16, 17D and 17E were themselves repudiatory breaches in response to which the claimant would have been entitled to resign. The claimant held off, wanting to believe that what was happening was not true and that he could return as Head Chef.[135]It was the 25 July email, the offence he took at it being described as a welfare meeting in the context of Helen Riley having prejudged his grievance, and the statement of alternative employment that was the last straw for him. The last straw is not nothing, but is seen in the context of Helen Riley’s assertions that he would not be coming back to work as a chef in the kitchen and to her threats that if he did not accept a kitchen porter role he would face disciplinary action. That position was stated on 26 March 2024 and repeated on numerous occasions as set out in the facts above culminating in the last straw on 25 July.[136]The claimant resigned in response to the 25 July email. There were other co existing factors affecting his decision to resign; the age related comments, the handling of the grievance, the threat of disciplinary action but it was the 25 July email and the clarity about him returning to an alternate role that led to him resign when he did.[137]The Tribunal heard no evidence from the respondent. It had regard to the witness statements of the respondent but attached little weight to them. It finds that there was no reasonable and proper cause for its actions. Even if the claimant had underperformed as alleged, and in part admitted, on 26 March 2024, the respondent had no reasonable and proper cause between 26 March and 25 July for suspending him, removing his duties as Head Chef, commencing disciplinary action and threatening to proceed with disciplinary action if he did not accept a demoted role as kitchen porter on national minimum wage working part time.[138]The claimant did not delay unduly from the last straw act on 25 July 2024 to his resignation on 19 August 2024. He was at that time extremely unwell. He had been seen by his doctor in early July 2024 and had had his medication doses increased significantly and had been signed as unfit for work until 4 October 2024. The claimant was receiving support from CAB and it was not always possible to get a response quickly from them. The Tribunal finds the claimant did nothing between 25 July 2024 and his resignation on 19 August 2024 that would amount to a waiver of any breach nor any affirmation by delay.[139]His grievance letter, dated 1 May 2024 had clearly set out the things he protested about whilst on suspension. The grievance letter signalled that the claimant was remaining employed under protest and that his GP fit note showed that he was not yet able to engage with the grievance process.[140]The claimant was unfairly dismissed. His complaint succeeded.[141]The Tribunal had regard to Polkey and considered what would have been likely to happen but for the constructive dismissal. This is something of an artificial exercise but the Tribunal had regard to;a. The claimant’s admission that he did not cope on 26 March 2024, that the new concept and way of working was completely different to how he had worked as a chef before, that he was finding it difficult to work under that pressure.b. His acceptance of the respondent’s position in its witness statements that he had not done the online learning that the respondent required of him in relation to allergens and other new requirements of his role and that he did not find it easy to use technology to complete online learning.c. Jane Campbell’s evidence that she had struggled with the new concept working on her first solo shift on Monday 25 March 2024 and her resignation six weeks later. It accepts her evidence that it was a completely different way of working as a chef, was pressured and fast paced and not a way that she wished to work, sending out frozen prepacked reheated portion controlled food, following a manual.d. The claimant’s sickness absence which was likely to continue to 4 October.e. The likelihood that if the respondent had not acted in a way that entitled the claimant to resign, he would have attended a welfare meeting in late August 2024 and discussed a return to work coming back on 4 October 2024.f. The likelihood that his return after 4 October 2024 would have had to be a phased return with some retraining given the length of his absence.g. That he would most likely have had a period of phased return on full pay from 4 October to mid November 2024, resuming full duties, with support of a kitchen porter and possibly a second chef on busy shifts from mid November onwards.h. The claimant’s acceptance that if the respondent was going to leave him as sole chef he would not have coped with busy service in late November and through December so that by early January the respondent would have decided to move to a capability process.i. That if done properly, it would have taken time for the claimant to be informally counselled about performance, supported with training and target setting and that if after that period the claimant had not met performance expectations it would have taken a further period to move to a formal capability process[142]The Tribunal finds that that process would have led to the claimant’s dismissal on capability grounds by 1 March 2025. Remedy[143]The Tribunal convened on the morning of day 3 as a remedy hearing. The respondent did not attend.[144]The claimant made submissions. He accepted the Tribunal findings on Polkey. He did not dispute that he would not have coped long term as a solo chef on the new menu. He did not dispute that he would have either been dismissed or resigned by 1 March 2025. He provided oral evidence as to his losses. He was 65 at the time of his dismissal and had 10 years continuous service.[145]The Tribunal found he was entitled to a basic award which was calculated as 1.5 x his gross week’s pay £533 x 10 years continuous service. The Tribunal awarded £ 7995 basic award.[146]The compensatory award comprised the amount that the claimant would have continued to receive in statutory sick pay entitlement from 19 August 2024 until a likely return to work on 4 October 2024, but with his entitlement expiring at 26 weeks on 24 September 2024 or thereabouts, so a further 6 weeks at SSP. The SSP for 2024 was £ 116.75 per week. The Tribunal awarded £ 583.[147]The Tribunal then awarded loss of earnings at full pay rate from a return to work on 4 October 2024 until 1 March 2025. The claimant earnt £ 2316 gross per month. The Tribunal multiplied that by 12 to get an annual salary of £ 27 792 then divided that by 52.14 to get a weekly rate of £ 533. The claimant did not provide a payslip to show this rate but the Tribunal accepted his oral evidence that this was his gross pay. 4 October a six week phased return on full pay, 6 x £ 533 = £ 3198 15 November to mid February, three months 3 x £ 2316 = £ 6948 Plus two weeks mid February to 1 March 2025 2 x £ 533 = £ 1158[148]The Tribunal had regard to his length of service and awarded £ 500 for loss of statutory rights. That brought his total compensatory award to £ 583 + £3198 + £ 6948 + £ 1158 + £ 500 being £ 12 387[149]The claimant then made submissions about the respondent’s unreasonable failure to follow the ACAS Code and requested a full 25 % uplift. The Tribunal found that the ACAS Code applied because the respondent convened a disciplinary hearing and the claimant submitted a written grievance. The respondent had unreasonably failed to follow it ina. Convening a disciplinary meeting that resulted in the sanction of him being removed from his role as Head Chef on 26 March 2024 without notice and without having been informed of the right to be accompanied.b. Failing to investigate his grievance, failing to meet with him to discuss his grievance, failing to appoint someone impartial to decide his grievance, reaching biased outcomes in the grievance. Helen Riley decided the elements of the grievance that related to her own conduct in convening a disciplinary hearing and that of her partner Mike. Her email of 2 May 2024 showed that she had prejudged the grievance. She was not impartial. The claimant was denied a fair grievance hearing. Her email of 19 June was an attempt to present a fair process for the grievance hearing but it had, at that point, been prejudged and there was still no meeting with the claimant, no independent investigation and no fair hearing with an impartial decision maker. The grievance had raised serious allegations of bullying and said that the claimant had felt physically threatened. It raised a complaint about the disciplinary meeting and not having had notice of it. It raised a complaint of harassment. Helen Riley’s response to it on 2 May showed that there was dispute between the parties and that an independent investigation and decision maker was needed.[150]The Tribunal rejected the claimant’s submission for a 25% uplift as this was not a case where no process had been followed at all, this was not an on the spot dismissal. Helen Riley called the claimant to a meeting, said she was suspending him and then said she was taking advice.[151]The Tribunal awards at 12.5% uplift. The ACAS Code has been in existence for a long time, the current iteration since 2015. Employees have the right not to be unfairly dismissed and compliance with the Code is a relevant factor when considering unfair dismissal cases. The respondent ought to have been aware of the Code and complied with it and could even have rung ACAS for guidance on handling the claimant’s underperformance on 26 March 2024.[152]Accordingly, the Tribunal uplifts the compensatory award by 12.5 % giving a total amount awarded of; basic award £ 7995 plus compensatory award £ 12387 plus uplift £ 3209 = £ 23 591. Conclusion[153]The claimant’s complaint of unfair dismissal succeeded and the claimant is awarded £ 23 591 but this claim now also contains a complaint of age discrimination harassment against the first respondent and a second respondent, Helen Riley, personally.[154]That complaint proceeds to a case management hearing.