Mr S Babu v Gadcet Properties Ltd: 6031786/2025
JUDGMENT
This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by Cloud Video Platform. A face-to-face hearing was not held because the relevant matters could be determined in a remote hearing. The judgment of the Tribunal is that: -[1]The Claimant’s claims for unfair dismissal is made out and succeeds.[2]The remedies hearing to assess the level of compensation for unfair dismissal is listed for Friday 13 November 2026.[3]Directions will be sent out separately in respect of preparations for this hearing.REASONS
[1]The Claimant was employed by the Respondent, (operator of a retail store selling second hand electronic items both in store and online), from 1 October 2022 until 25 March 2025. The Claimant in his Claim Form asserted that he was unfairly dismissed following a meeting on 13 March 2025 for no legally permissible reason and in the absence of a fair procedure. The Respondent in its Response Form asserted that the Claimant left his employment on 25 March 2025 by reason of mutual agreement. The Respondent did not assert that the Claimant was dismissed under section 98 Employment Rights Act 1996 (‘ERA’) for a legally permissible reason, nor did it assert that a fair procedure was followed in dismissing the Claimant.[2]In respect of the issue related to the claim of unfair dismissal, I had to answer the following question: Was the Claimant dismissed? This was the central dispute in this case. The Respondent stated that the Claimant was not dismissed by it but left his employment by mutual agreement. No reason for dismissal was adduced. If I found that the Claimant was dismissed and did not leave by mutual agreement, then the dismissal must be unfair as no legally permissible reason for dismissal was put forward by the Respondent and no fair procedure was followed to terminate the Claimant’s employment.[3]I had before me an agreed bundle of documents made up of 490 pages, the Claimant’s supplementary bundle made up of 7 pages, the Claimant’s opening statement made up of 6 pages, the Claimant’s schedule of loss made up of 2 pages and a witness statement bundle made up of 71 pages. The Claimant prepared a witness statement and attended the hearing to give oral evidence under oath. Ms. Tayyaba Shakil and Mr. Jahangir Ali, Operations Support/General Administrator attended on behalf of the Respondent to give oral evidence under oath. The Claimant produced a witness statement from Mr. Muhammed Ashraf who did not attend to give oral evidence. The Respondent produced witness statements from Mr. Mohamed El Hassany, Operations Associate and Mr. Shakur Ali, Director. I read these statements but because the witnesses did not attend to give evidence under oath and be subject to questioning, I placed little weight on their evidence. I heard oral testimony from the Claimant and then from the Respondent’s two witnesses. The parties then produced written closing submissions and spoke briefly to them. All of the witnesses were subject to cross examination and questions from me. I reserved my judgement at the conclusion of the liability hearing and confirmed that if the Claimant was successful, I would list a remedy hearing for 13 November 2026 and send directions to the parties to prepare for it. Those directions have gone out to the parties separately.Facts
[4]In respect of the facts that I have found in this case, I preferred the evidence of the Claimant as it more accurately reflected the relevant documents produced in this case and was consistent with them. The Respondent on the other hand admitted that it was a relatively small employer (20 employees at the time of the Claimants departure) and did not have in place a disciplinary/grievance procedure nor did it have section 1 ERA terms and conditions of employment for its employees, including the Claimant. These are legal requirements that have been in place for a considerable period of time.[5]The Respondent operates a second-hand electronic retail store both at its shop floor branch and online. It buys and sells electronic items for a profit and at the time of the Claimants service it employed 20 employees. The Claimant was employed as a Business Analyst and there was no dispute that he was an employee albeit he was not provided with a contract of employment nor a job description. He is from India and was sponsored by the Respondent under a skilled worker visa with a route to indefinite leave to remain in the UK. In such circumstances, as he was entirely reliant on the Respondent for sponsorship, he was in a vulnerable position as an employee employed by it. This was because the Claimant’s right to live and work in the UK depended on his employment continuing.[6]The Claimant gave evidence that I accepted that his role varied throughout his employment. He undertook various roles for the Respondent including operations and process improvement. These tasks included analyzing operational data, helping to design new processes, supporting systems and reporting and assisting with various projects across the Respondent’s business. He gave evidence that I accepted that he was not subject to disciplinary action nor did he receive any form of informal or formal disciplinary action. The Respondent via Ms. Shakil admitted that there was no disciplinary procedure in place during the Claimant’s employment. In such circumstances, I find that it would have been hard for the Respondent to take disciplinary action against the Claimant. The Respondent tried to persuade me that the Claimant had been subject to a final written warning but produced no copy of it. Furthermore, there were no notes of any disciplinary meeting with the Claimant leading to such warning as I would have expected the Respondent to produce. I accepted the Claimant’s evidence that he had not been subject to any disciplinary action and in the absence of the Respondent producing a copy of the final written warning, I did not accept the Respondent’s evidence.[7]Furthermore, the Claimant had an annual review meeting with his line manager, Mr. Mohamed El Hassany, on 27 December 2024 and was provided with written feedback on 7 January 2025 that was very positive and contradicted the Respondent’s assertion that the Claimant was given a final written warning. I quote this email in its entirety. ‘Hi Shevin, Thank you for reaching out. I want to start by saying that I truly appreciate the dedication and expertise you bring to the team. As I’ve mentioned before, I know you understand what you’re doing, and your depth of knowledge about the businesses you’ve worked on is evident. That said, I've faced challenges due to the lack of structure, defined milestones, deliverable tracking, and consistent communication or email records. This has created some messiness and chaos in my processes. However, I firmly believe that with the right systems in place, we can turn this around. Based on our previous discussions, it’s clear that you have both the hard and soft skills necessary to excel and drive success. Your contributions are invaluable, and you are genuinely one of the most important employees in this company. Best regards, Mohamed’[8]From the email sent to the Claimant, it was clear that any issues relating to the Claimant’s work performance related to the Respondent’s own lack of structure and poor processes/systems that were in place. This was being communicated to the Claimant by his line manager on 7 January 2025. Rather than deal with these processes and ensure that the Claimant could properly undertake his duties, he was called into a meeting on 11 March 2025, two months after his positive work appraisal by Mr. El Hassany by Mr. Jahanghir Ali and Mr. Shukur Ali, the company director. The Claimant was told that the purpose of the meeting was to go through his work so far with Mr. Shukur Ali and Mr. Jahangir Ali. On that basis, he understood it to be a review of projects and progress, not a disciplinary or dismissal meeting. At this meeting, the Claimant outlined all of his work, including projects, improvements and the different areas he had been covering. Part way through the meeting, the tone shifted. The Claimant was told that “things aren’t working out” and that the Director wanted to “go in a different direction”. The Claimant was then told that his last working day would be 25 March 2025. No specific allegations of misconduct or poor performance were put to him. No note of this meeting was produced by the Respondent, but Mr. J. Ali did not dispute the above findings when they were put to him by the Claimant.[9]Later that day, the Claimant emailed Ms. Shakil and recorded that he had been told that 25 March 2025 would be his last day of employment. The Claimant pointed out that he had received no warnings or that a proper dismissal process had been gone through. He also referred explicitly to the fact that the situation had caused him severe anxiety. He requested a one-to-one meeting with Ms. Shakil to discuss his concerns about what had happened. However, instead of a one-to-one meeting with Ms. Shakil, the Claimant was told that he would be required to attend a review meeting with HR. This was to take place on 13 March 2025. The Claimant was expecting this meeting to be with Ms. Shakil. However, when he attended the meeting room, there were four people present. They were Shukur Ali (Director), Mohamed El Hassany (line manager), Tayyaba Shakil (HR), and Kadir, an external person who was the Respondent’s external accountant. As the Claimant was concerned about the actions of the Respondent following the meeting on 11 March 2025, he recorded the second part of the meeting missing out approximately the first 15 minutes.[10]From the transcript of the meeting, the following comments were made by the Respondent to the Claimant: 00:00:43–00:02:59 – at the opening of the meeting Kadir asked the Claimant if he was okay now after taking a break from the first part of the meeting when no recording was being made and asking him what he have produced to “justify” his salary, and asking him to explain the wide range of duties he have been doing. 00:04:45– 00:05:00 – the Claimant asked whether he had a job description and was told to “forget job description”. 00:06:50–00:09:11 – there was a discussion of the Claimant’s visa situation, including the comment “so you’re here only for a visa situation?” 00:09:28–00:12:25 – the Claimant explained that he had almost no performance feedback and did not know what the meeting was for, and Ms. Shakil stated that the Claimant’s concerns were “very serious” but offering no proper solution. 00:17:44–00:19:39 repeated allegations were made against the Claimant that he had been watching films and AI “agent” videos in company time. 00:20:53– 00:21:18 – the Claimant asked if he was ‘getting fired” and Shukur Ali responded in a flippant way by saying “quiz time” and turning the meeting into a quiz about AI instead of addressing the Claimants concerns. 00:29:20–00:29:55 – the Claimant realized that his passwords have been changed while he was in the meeting and was trying to open a file. The Claimant stated why this was being done but did not get an answer. 00:47:45, the Claimant was told that he was ‘shutting all the doors’ for himself. At 00:50:48, the Claimant was told that he left the Respondent with ‘no choice.’ At 00:56:55, the Claimant was told that ’you have pushed yourself into a hole,’ and that ‘it’s a shame, because you’re a smart guy.’ These comments were repeated by Shakur Ali and Ms Shakil. Thereafter the Claimant was told that his final day would be 27 March 2025, that he would be going through a transition period and during this period, he would be required to hand over his work and not have any access to the Respondent’s computer systems. He would be required to provide his passwords and laptop to the Respondent.[11]Following the meeting on 13 March 2025, the Claimant sent a number of messages to Ms. Shakil by WhatsApp and none of his messages received a substantive response. Following the meeting, the Claimant’s work account was blocked, and he sent an email to Ms. Shakil on 24 March 2025. In this email the Claimant explained that he had not had replies to his WhatsApp messages from 17, 18 and 19 March relating to his concerns. He requested the reason for his termination and confirmation that his last working day would be 25 March 2025. He enquired about whether he would be paid notice pay and when he could expect his final salary. He asked why his company email was disabled on 14 March 2025 and confirmed that he had done his handover. He asked about when the company would notify the Home Office about the end of his employment and confirm the type of reference he would get. As all of his questions were urgent, he asked for a quick reply.[12]On 25 March 2025, the Claimant was told not to come to work on 26 March. On 25 March the Claimant again emailed the Respondent in similar terms as he did on 24 March and sent similar emails to the Respondent on 31 March and 3 April 2025. The Claimant did not receive a substantive response from the Respondent to any of these emails.[13]On 2 April 2025, the Respondent informed the Home Office that the Claimant was not working for the Respondent and that it had withdrawn his sponsorship. On 10 June 2025, the Claimant received a letter from the Home Office saying that as he had stopped working for the Respondent his permission to stay in the UK was being curtailed as of 9 August 2025 unless he received another job with an employer that was prepared to renew his sponsorship. As he did not receive such a job offer, he had to leave the UK and has now returned to his home country, India.Law
[14]A claim for unfair dismissal will fail if there has not in fact been a dismissal. A resignation is the termination of a contract of employment by the employee. It need not be expressed in a formal way and may be inferred from the employee’s conduct and the surrounding circumstances – Johnson v Monty Smith Garages Ltd EAT 657/79. The editors of IDS employment law handbook state at volume 12, paragraph 1.17:- “Broadly speaking the test as to whether ostensibly ambiguous words amounted to a dismissal or a resignation is an objective one:-all the surrounding circumstances must be considered; -if the words are still ambiguous, the Employment Tribunal should ask itself how a reasonable employer or employee would have understood them in the circumstances.’[15]The crucial issue was who brought the contract to an end. Termination by mutual agreement or by way of a dismissal by the employer is a question of both fact and law. The principles to be considered in such circumstances were set out by the Court of Appeal in Martin v Glynwed Distribution Ltd [1983] ICR 511, CA. In that case Sir John Donaldson Master of the Rolls observed 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 remained the same, “who really terminated the contract of employment?” If the answer is the employer, there is a dismissal. He went on to state that this question is one of fact for a Tribunal to decide in the circumstances of a particular case.” However, whether those facts amount to a dismissal or a consensual termination — is a question of law (Birch and anor v University of Liverpool 1985 ICR 470, CA).[16]The effect of a ‘termination by agreement’ is to deny the employee statutory employment protection rights, thus courts and tribunals should be wary and exercise caution in making such a finding unless there is very clear evidence that an entirely voluntary arrangement has been entered into. Several authorities provide support for this: -Finding that an employee had voluntarily resigned after agreeing severance terms at the same meeting at which the employer told him that he was being dismissed was held to be perverse (Sandhu v Jan de Rijk Transport Ltd 2007 ICR 1137, CA); Tribunals should look at such situations carefully to ensure that the employer’s words do not, in reality (as a matter of law), amount to a dismissal. The intention of the employer and the attitude of the employee need to be considered: if there is no threat of dismissal and the employee acts voluntarily, termination is by agreement. (Hart v British Veterinary Association EAT 145/78); The EAT concluded that the employee’s employment was not terminated by agreement where both options put to him by the employer involved his dismissal. The crucial issue was who brought the contract to an end, and where, as in this case, an employee is given two options, both of which involve dismissal, the only sensible conclusion is that the dismissal is intended by the person offering those options. (Francis v Pertemps Recruitment Partnership Ltd EATS 0003/13).[17]In respect of unfair dismissal, Section 98(1) Employment Rights Act 1996 provides that it is for the employer to show the reason or principal reason for dismissal of the employee and that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. If the Respondent fails to do so the dismissal will be unfair. Tribunals Conclusions[18]In this case, the central issue for me to determine was whether there was a dismissal of the Claimant by the Respondent. In answering this question, I had to ask ‘what ultimately caused’ the Claimant’s termination of employment. I find this to be clear from the evidence presented to me that it was the Respondent that dismissed the Claimant and that the Claimant did not leave his employment by mutual consent as asserted by the Respondent. I come to this conclusion for a number of reasons and will state them in the paragraphs that follow.[19]Firstly, the Claimant was told to attend a meeting on 11 March with the Director of the company Mr Shukur Ali and Mr. Jahangir Ali. He was told that the purpose of the meeting was to go through his work. On that basis, he attended the meeting understanding that the purpose of it would be to review his projects and the progress of them. He did not understand the meeting to be a disciplinary or dismissal meeting. At this meeting, the Claimant outlined all of his work, including projects, improvements and the different areas he had been covering. Part way through the meeting, the tone shifted. The Claimant was told that “things aren’t working out” and that the Director wanted to “go in a different direction”. The Claimant was then told that his last working day would be 25 March 2025. No specific allegations of misconduct or poor performance were put to him. No note of this meeting was produced by the Respondent, but Mr. J. Ali did not dispute the above findings when they were put to him by the Claimant. I find that the use of these words used by the Director amounted to an express dismissal supported by the fact that the Claimant was given a termination date of 25 March 2025.[20]Secondly, the Claimant’s dismissal was reconfirmed at a recorded meeting on 13 March 2025 when the Claimant was told that he would be required to attend a review meeting with HR. This meeting took place in the Respondent’s meeting room where there were four people present. They were Shukur Ali (Director), Mohamed El Hassany (line manager), Tayyaba Shakil (HR), Kadir, an external person who was the Respondent’s external accountant. The Claimant recorded this meeting as he was concerned about the actions of the Respondent following the meeting on 11 March 2025. At a number of occasions towards the end of the meeting, the Respondent used words that made it clear that the Claimant was being dismissed. These were that he was ‘shutting all the doors’ for himself, that he left the Respondent with ‘no choice,’ that he had ‘pushed yourself into a hole,’ and that ‘it’s a shame, because you’re a smart guy.’ These comments were made by Shakur Ali and Ms Shakil. Such language clearly indicated that the Respondent was dismissing the Claimant[21]Thirdly, at this meeting, the Respondent took direct actions that clearly indicated that the Claimant’s employment was being terminated by the Respondent. These actions included the disconnection of the Claimant’s right to access the Respondent’s internal computer systems, the provision to the Claimant of a termination date, the requirement for the Claimant to work for a transition period, the requirement that the Claimant handover his work and his passwords.[22]Finally, following the meeting on 13 March 2025, the Claimant sent a number of messages to Ms. Shakil by WhatsApp as well as emails on 25 March, 31 March and 3 April asking for clarity and none of his messages or emails received a substantive response from the Respondent. In these messages he tellingly asked the Respondent for the reason for his dismissal. If it was correct that the Claimant had left by mutual agreement as asserted by the Respondent, I find that it was rather incongruous for him to be asking for the reason for his dismissal so soon after the meeting on 13 March. I find that the Respondent’s failure to respond to this request, belies its assertion that the Claimant left by mutual agreement. In addition, I find that the Respondents failure to respond to the other relevant questions that the Claimant was asking also indicated that the Claimant had been dismissed. In his messages and emails, he requested the reason for his termination and confirmation that his last working day would be 25 March 2025. He enquired about whether he would be paid notice pay and when he could expect his final salary. He asked why his company email was disabled on 14 March 2025 and confirmed that he had done his handover. He asked about when the company would notify the Home Office about the end of his employment and confirm the type of reference he would get. All of his questions were urgent and required a quick reply. However, the Respondent did not provide a substantive response to any of the questions and only did so after this claim was instituted in the Employment Tribunal.[23]As I have found that the Claimant was dismissed, I then considered whether any potentially fair reason for dismissal emerges from the evidence, notwithstanding the Respondent’s failure to plead one. The burden lies on the Respondent to establish the reason for dismissal, and I find that it has failed to discharge that burden. While allegations were raised during the 13 March meeting (including concerns about the Claimant’s work activities), I find that these were not formulated as a coherent or genuine reason for dismissal. They were not investigated, particularised, or put to the Claimant in a manner consistent with a disciplinary process. Accordingly, I find that the Respondent has failed to establish, on the balance of probabilities, the reason for dismissal within the meaning of section 98(1) ERA 1996. In the absence of such a reason, the dismissal is unfair.[24]I considered the question of what would have happened had a reason for dismissal been put forward and a fair procedure for dismissal been put forward by the Respondent. Even if I had found that the Respondent was relying on capability or conduct, the complete absence of any procedure — including investigation, warning, or opportunity to respond — would render the dismissal procedurally unfair and outside the band of reasonable responses. I have considered whether there should be any reduction in compensation to reflect the possibility that the Claimant would have been fairly dismissed had a proper procedure been followed (Polkey). In light of the absence of credible evidence of misconduct or sustained poor performance, and the positive appraisal shortly before dismissal, I conclude that the chances of a fair dismissal occurring in any event were low. Doing the best I can on the available evidence, I assess that chance at no more than 10%, and I will reflect this, if appropriate, at the remedies stage. I have also considered whether the Claimant contributed to his dismissal by culpable conduct. While allegations were made during the meeting, I do not find them established on the evidence. Accordingly, I make no finding of contributory fault.[25]For the reasons cited above, I find that the Claimant’s claim for unfair dismissal succeeds both procedurally and substantively. The remedies hearing is listed for Friday 13 November 2026 and directions for this hearing will follow. I hope that the parties can come to an amicable agreement on compensation using alternative mediation such as ACAS so that there will be no need for the remedies hearing.