Mr B Wilson v The TBC Pub Company Ltd: 8002049/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8002049/2025Venue EdinburghHearing 30 March 2026
Between
Mr B WilsonClaimantThe TBC Pub Company LimitedRespondent
Before
Employment Judge A JonesDate 13 April 2026
JUDGMENT
The claimant was wrongfully dismissed, and the respondent is ordered to pay the claimant the sum of £817.25 net being a week’s wages. The respondent unlawfully deducted sums from the claimant’s wages and the respondent is ordered to pay the claimant the sum of £383 net, being pay between 4 and 7 May 2025 and tips for the week to 7 May 2025. Introduction[1]The claimant complained that he had been wrongfully dismissed and that the respondent had made unlawful deductions from his wages. The respondent’s position was that the claimant was dismissed for gross misconduct and had been paid all sums to which he was entitled.[2]The claimant gave evidence and called a former colleague Mrs Mackay who had been the finance manager for the respondent during the claimant’s employment. Mrs Banks, the respondent’s Operations Director and Mr Bucknall a director who dismissed the claimant gave evidence for the respondent. Both parties lodged productions and made brief oral submissions on the conclusion of the evidence. Findings in fact[3]The Tribunal made the following findings in fact.[4]The claimant was employed by the respondent as General Manager at its operations at The Bridge Inn, Ratho from 10 March 2025 until his dismissal without notice on 7 May 2025. He was issued with a contract of employment on 7 March by Mrs Banks. The contract stated that the claimant’s “annual package is £50,000”. It also stated that the claimant’s employment was subject to a “probationary period of three (3) months, during which your performance and suitability will be assessed.” The contract provided for 1 weeks’ notice of termination of employment by the respondent where the claimant had been employed for more than a month, but less than a year.[5]The claimant’s weekly pay was £961 gross (£50,000/52) and around £817.25 net including payments from the tronc system. The claimant’s daily net pay was £116.75.[6]The Bridge Inn was one of three hospitality premises operated by the respondent.[7]The respondent had no formal meetings with the claimant to discuss his performance. Mrs Banks made a comment to the claimant in the beer garden of the Bridge Inn at some stage during his employment that his communication with staff could be improved. No other issues were raised with the claimant regarding his performance until his dismissal.[8]Prior to the claimant commencing employment, the respondent had found it difficult to recruit sufficient staff to cover shifts and on occasion had to close as a result of inadequate staffing levels. The respondent continued to face staffing challenges after the claimant’s employment despite the claimant’s attempts to recruit more staff.[9]Mrs Banks to whom the claimant reported, was responsible for all three of the respondent’s operations, and would occasionally cover for staff shortages when required. 10.The respondent operates a tronc scheme in relation to service charges paid by customers which are then paid to staff as part of their basic pay. Additional cash tips left by customers are divided up and paid to staff depending on the number of hours worked by them. 11.Monday 5 May 2025 was a bank holiday and the Bridge Inn was busy on that day. The claimant was working that day until around 5.30pm. The claimant sent a message to Mrs Banks at 9.25am on 5 May to inform her that the assistant manager had indicated that she was unwell and would not be able to work that day. The message stated “we’re properly in trouble as I’ve childcare this evening and tomorrow. Just spoken to Tina and she’s unable to get out of her commitments. I’m hoping you’re able to be in to support/cover. If not its offering Tomas double time perhaps? Karen has also agreed to a 1am check in! “Mrs Banks responded almost immediately “I’m at the bridge just now”. 12.When the claimant finished his shift on 5 May, he made Mrs Banks aware that he was leaving and said he didn’t know who was going to provide the extra cover. Mrs Banks continued to work at the Bridge and arrangements were made for Mrs Bucknall, who is also a director of the company and the wife of Mr Bucknall, to cover the breakfast shift on 6 May. 13.Mrs Banks sent a message to the claimant at 21.14 on 5 May asking if he had placed bar orders. There was no reference made to issues with staffing. 14.Mr Bucknall sent a message to Mrs Bucknall at 21.37 on 5 May stating “I’m down at the bridge. Please come. All ok ish and Gemma good but would like you here for a chat. We think ben needs to go. And I think you might have to do breakfast tomorrow.” 15.When the claimant returned to work for his next planned shift on 7 May, Mr Bucknall called him to the office at the premises. Mr Bucknall was extremely angry at the claimant and told him to “fuck off” and that he was being dismissed with immediate effect. Mr Bucknall dismissed the claimant because he was aggrieved that the claimant had not returned to work once the claimant’s wife had returned home around 10pm on 5 May and had not been in touch on his day off regarding staffing. 16.Mr Bucknall decided to dismiss the claimant having discussed matters with Mrs Banks and Mrs Bucknall and concluded that they did not believe that the claimant was suitable for the role of General Manager at the Bridge Inn. 17.The claimant was paid to 4 May and was not paid for 5-7 May. The claimant did not receive any payments in respect of tips for the week to 7 May. Tips would have amounted to approximately £33 for a week’s work. 18.The claimant did not receive any correspondence confirming his dismissal until a letter sent on 9 June by Mr Bucknall which followed the claimant contacting the respondent to raise concerns that his final salary had not been paid in full. 19.The claimant was subsequently paid additional sums, but this did not include any notice pay, tips or tronc pay for the notice period. Relevant law[20]Wrongful dismissal is a claim at common law for breach of contract. The Tribunal’s task is to determine whether the respondent dismissed the claimant in breach of an express or implied contractual term governing termination. 21.The measure of damages is the net value of the salary and contractual benefits the claimant would have received during the period of notice to which they were contractually entitled. The Tribunal is required to assess the loss flowing from the premature termination of the contract and is not required to inquire into the fairness or reasonableness of the dismissal. 22.Where the contract provides for termination on notice, the employer must give the agreed period of notice unless the termination is without notice in circumstances where the employee has committed a repudiatory breach of contract. Misconduct must be of a nature that goes to the root of the contract. The Tribunal must determine for itself, on the balance of probabilities, whether the claimant in fact committed such a breach. 23.The authorities emphasise that the wrongful dismissal test is objective and contractual. The question is not whether the employer reasonably believed the employee to be guilty of misconduct, but whether the employee actually committed misconduct that entitled the employer to dismiss summarily. In London Transport Executive v Clarke [1981] ICR 355, the Employment Appeal Tribunal confirmed that an employer’s reasonable belief, however genuinely held, is insufficient to establish a defence to a wrongful dismissal claim. Similarly, in Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2012] ICR 201, the Supreme Court reiterated that wrongful dismissal turns on contractual terms and factual breaches, not on the procedural fairness standards applicable in statutory unfair dismissal. 24.If the employer purports to rely on summary dismissal but cannot establish a repudiatory breach, the dismissal is wrongful and the claimant is entitled to damages reflecting their notice entitlement. 25.The respondent made reference in submissions to Adesokan v Sainsbury’s Supermarkets Ltd 2017 ICR 590 as authority for the proposition that gross negligence can amount to gross misconduct which would permit an employer to dismiss an employee without notice. The Court of Appeal held that when determining whether there had been gross misconduct, the focus was on the damage to the relationship between the parties. In that case a Regional Manager had become aware that the integrity of a key company policy which he was responsible for implementing was at risk and did not take steps to remedy the situation. The Court stated that while “dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.” 26.Section 13(1) Employment Rights Act 1996 (‘ERA’) provides: “An employer shall not make a deduction from wages of a worker employed by him unless—(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.” 27.Section 27(1) ERA 1996 defines “wages” as: “any sums payable to the worker in connection with his employment, including… any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.” Section 27(2) sets out certain excluded categories, none of which apply on the facts of this claim. Discussion and decision[28]The claimant was dismissed because the respondent came to the view that he was not performing in the manner they expected of a General Manager. In particular, the respondent was aggrieved that the claimant did not remain at work beyond his shift on 5 May or work on the following day which was his day off, did not made arrangements beyond asking his line manager to provide necessary cover and did not make any contact to establish if cover had been arranged during that period. Although in its grounds of resistance the respondent sought to highlight other perceived issues in the claimant’s performance or conduct as forming the reason for his dismissal, the Tribunal formed the view that the respondent was simply seeking to shore up the grounds for the decision to dismiss the claimant. None of these concerns were raised with the claimant during his employment. 29.The issue for the Tribunal to determine is whether the claimant’s conduct was so serious as to amount to gross misconduct. In particular, the respondent’s position in submissions was that the claimant’s conduct on 5 and 6 May was grossly negligent. 30.The claimant had sought to make arrangements for cover of his colleague who was off sick. That is clear from his message to Mrs Banks. The suggestion by the respondent in evidence that the claimant didn’t do anything to arrange cover was not sustainable. While the respondent might have reasonably expected the claimant to have made some contact the following day to check what arrangements had been made, in the Tribunal’s view his conduct did not amount to gross negligence or gross misconduct. The Tribunal took into account that the claimant was in a senior position as General Manager. However, the claimant had also raised his concerns with his line manager at the earliest available opportunity to look for support and asked her to provide cover. She did not demur from that request or inform the claimant that he would have to resolve matters himself. Rather the Tribunal came to the view that the respondent did not think that the claimant was suitable for the role in more general terms and this was a ‘last straw’ as a result of which a decision was taken to dismiss the claimant with immediate effect. 31.The respondent sought to characterise the claimant as having “swanned off” without properly carrying out his duties. The claimant had explained that he had to look after his children as his wife was at work. He had a legitimate reason for not working additional hours to cover for another member of staff and had asked his line manager to assist. The respondent had been facing staffing issues for some time, which were not related to the claimant. While it may have been expected that the claimant would phone to check what arrangements had been put in place before he returned to work, his failure to do so, even when taken together with his inability to work the additional hours fell well short of gross misconduct. 32.The claimant was therefore wrongfully dismissed, and the respondent is required to pay to him the week’s notice pay to which he was entitled. The claimant had not obtained alternative work during that period, and the respondent is required to pay to the claimant the sum of £817.25 net. That sum includes the tronc payment to which the claimant would have been entitled during his notice as his salary was said to include that payment. 33.In addition, for reasons which were not explained, the claimant was only paid until 4 May, when his employment was not terminated until 7 May. On the basis of a daily rate of pay of £116.75 net, the claimant is entitled to be paid £350 net. In addition, the claimant was not paid tips for the last week of his employment, and this amounted to £33. The failure to pay both these sums to the claimant amounted to unlawful deduction from his wages. The respondent is required to pay £383 to the claimant in relation to the unlawful deduction from his wages.