Whistleblower's Claims Rejected by Employment Tribunal

OUTCOME: Dismissed

Case Number: 6004441/2024

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent:

[redacted]

London Central in person On: 20, 21, 22, 23, 24, 27, 28, 29, and 30 October 2025 Before: Employment Judge Forde

REPRESENTATION:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT The unanimous judgment of the Tribunal is as follows:

Detriment for making protected disclosures

1. The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.

2. The complaint of unfair dismissal is not well-founded and is dismissed.

3. the complaint of automatic unfair dismissal arising because the claimant made protected disclosures is not well-founded and is dismissed.

4. The complaint of unlawful deductions from wages contrary to section 13 Employment Rights Act 1996 in respect of holiday pay and tips is not well- founded and is dismissed.

Reasons

Case Number: 6004441/2024 5. By way of a claim form presented on 23 June 2024, the claimant brought a claim for protected disclosure detriment. No details are provided in the claim form other than the following:

“I have worked in this restaurant more than five years and six months. Two years ago I have been suffering bullying from my boss. All this bullying is caused by the fact that I have evidence that my boss sells drugs to staff and consumers within the restaurant. He also sells drugs to outsiders. I also witnessed at the restaurant who can confirm because of my boss I am having psychological problems that are affecting my mental health.”

6. During the course of a preliminary hearing before employment Judge Khan on 27 November 2024, the claimant confirmed that he made protected disclosures to [NAME_3] one of the owners of the respondent. Essentially, he alleged that [NAME_3] was selling marijuana to staff in the restaurant where food was being served, and [NAME_3] retaliated by bullying him on a daily basis, specifically by following the claimants round the restaurant, shouting at the claimant making small mistakes and reprimanding the claimant at the end of the day in front of colleagues which embarrass the claimant.

7. During the course of the preliminary hearing the claimant also alleged that [NAME_3] treated him detrimentally on the ground that he made that a protected disclosure by failing to pay him cash tips each day from late 2019 to 11 July 2024.

8. Judge Khan ordered the claimant to provide further information to the tribunal. First, the claimant was required to clarify the protected acts that he relied upon and was directed to do so by specifying what was said to [NAME_3], when it was said to [NAME_3], and what was the category of wrongdoing that the claimant believed he was disclosing [NAME_3] at the time and the claimant was to do this by reference to the six categories of wrongdoing set out under section 43B(1) Employment Rights Act 1996 (hereinafter referred to as “ERA”).

9. In addition, the claimant made an application to amend his claim to include a claim for unfair dismissal, automatic unfair dismissal claim for protected disclosure detriment/unlawful deductions from wages arising from the failure to pay tips and a claim for unlawful deductions arising from the alleged failure to pay the claimant is full entitlement to leave accrued on termination. Judge Khan identified that the date on which the amendment takes place was the date when they were granted i.e. 27 November 2024. Specifically, judge Khan states at paragraph 10 of the preliminary hearing order, ‘no time limit issues arise save for the claim for whistleblowing detriment/unlawful deductions from wages about the alleged failure to pay tips, however, as the claimant’s application to add those claims was made within the primary limitation period this will be a relevant factor when the time limit issue is considered at the final hearing ‘.

Case Number: 6004441/2024

10. Judge Khan identified that the application to amend to include a claim of unfair dismissal was made on 19 September 2024, the relevant date for the automatic unfair dismissal amendment is 19 September 2024, the relevant date in respect of protected disclosure detriment in relation to the unlawful deductions from wages alleged to have occurred arising from the failure to pay tips is 28 August 2024 and the relevant date in respect of the claim for unlawful deductions from wages to pay the claimant’s full entitlement to leave accrued on termination, 28 October 2024.

Procedure

11. It was clear that the claimant took issue with what he saw as the respondent’s non-compliance with tribunal orders in the time leading up to the full merits hearing. These concerns manifested themselves by way of numerous email applications and enquiries made of the tribunal by the claimant in advance of the hearing and he addressed the concerns by submitting Further, the claimant made an application to the tribunal in relation to the respondent’s alleged non-compliance with tribunal orders and specifically in relation to the disclosure of documents, the final hearing bundle and witness statements.

12. EJ Adkin listed the matter for hearing to address the substantial number of referrals raised by the parties, mainly the claimant and to deal with the claimant’s application. A further preliminary hearing was held on 13 August 2025 for me. At that time, explains the parties that it was inappropriate overwhelm the tribunal with a large number of referrals and that it was for the parties to collaborate as far as it is possible to do so in relation to the remaining directions that required compliance at that time so that the full merits hearing would be effective.

13. During the course of that preliminary hearing, the claimant enquired about the possibility of preparing his own bundle as opposed to collaborating with the respondent and preparing a joint bundle. I expressed the hope that collaboration would take place and expanded the directions timetable to ensure that the parties had an opportunity to collaborate prior to the full merits hearing.

14. However, as matters turned out, the parties had prepared their own bundles. The claimant’s bundle contained a lot of what was contained within the respondent’s bundle. It also contained a number of videos taken by the claimant of [NAME_3] and of matters that underpins the claimant’s allegation of illegality or even worse criminality by way of the alleged involvement by [NAME_3] in the processing and sales of what the claimant believes or alleges to believe a controlled drug, namely cannabis.

15. In the lead up to the hearing, the claimant had submitted a further application to strike out the respondent’s response on the basis of further non-compliance arising from the respondent’s alleged failure to collaborate in the preparation of a single bundle and that the exchange of witness statements had been

Case Number: 6004441/2024 delayed. I dealt with those applications shortly. In relation to the bundle complaint, it appeared to me that both parties had prepared bundles that were capable of assisting the tribunal. Therefore, it could not be said that the failure to prepare a bundle or its late delivery would render the trial unfair to the claimant. On the contrary, the claimant had possession of all of the documents within the bundle save for an addendum bundle of approximately 60 pages that the respondent served on the claimant by email on 14 October 2025.

16. Reminding myself that strike out is a Draconian sanction, one that would give the claimant a potential windfall and weighing up not only the detriment because of the claimant but also the wrongdoing as alleged by the respondent, I found that in respect of the bundle complaint that there had been no default by the respondent’s representative or, alternatively that the level of default so low be considered a matter suitable for the sanction of strikeout. I was unable to detect any prejudice to the claimant whatsoever in terms of the preparation of the bundle noted that the claimant had prepared his own bundle.

17. By no later than 8 October 2025. [NAME_4] on behalf the respondent submitted that exchange of witness statements took place on the date at approximately 11:56 pm. The claimant refutes this, saying they arrived the following day. When I asked the claimant what was the practical consequence of the late delivery of this witness statement, the claimant was unable to tell me anything apart from reiterating his position that the respondent’s witness statement had been exchanged late. In my finding this application lacked any merit and was dismissed on the basis that it lacked merit and in any event, strikeout would be a disproportionate outcome even if the respondent’s witness statement arrived in the early hours of 9 October 2025.

18. The next issue that I had to consider was the admission of witness statement evidence. The claimant sought to rely on a 10 paragraph witness statement prepared he said on behalf by a former colleague and employee of the respondent. The witness statement does not identify who the witness is. The claimant says this is because the witness feared reprisal from the respondent. I explained to the claimant that I was deeply troubled by the proposition that a witness statement should be admitted into evidence on behalf the witness who was unidentified and who had signed their witness statement with an ‘X’. I explained that in my view the witness had failed to set out in the witness statement an adequate reason why they could not be identified. The claimant sought to rely on the fact that the witness genuinely held a fear of reprisal giving evidence against the respondent. It was also a concern of mine that the witness allegations against [NAME_3] and [NAME_5]. None of the allegations raised in the statement are identified by location, date and provide only scant details or headlines.

19. I explained to the parties that the statement offended the principle of open justice in my view and was unfair to the respondent on the basis that in my view it would breach article 6 of the [NAME_6] on the basis that it

Case Number: 6004441/2024 would represent an unfairness in the trial procedure were the witness statement of an unidentified witnesses be admitted and with the respondent unable to challenge that witness’s evidence. Consequently, I directed that the witness statement would not be admitted into evidence. On day three of the hearing, the claimant informed the tribunal that the witness was prepared to attend the tribunal and give evidence. The claimant identified the witness as [NAME_7] that she would be available to give evidence on day five of the hearing.

20. I directed that various documents within the respondents addendum bundle would not be admitted namely certain CCTV videos and transcripts prepared by of those videos. I did that because the claimant said that he had not seen the email sent to him by [NAME_4] on 14 November 2025, and because the tribunal did not have access to those videos owing to a technological difficulty within the tribunal system (this was remedied by day 5 at which point I viewed the videos and listened to the recordings at the claimant’s request).

21. By day three of the hearing the respondent’s renewed its application to admit video evidence condensed to 10 minutes worth of video secured from the respondent CCTV system for 11 May 2024. The respondent’s application was predicated on the basis that the video tended to demonstrate that the claimant’s core allegation in respect of the failure to pay tips namely that he had not received any was false and demonstrable so. In particular, the respondent stated that there was dialogue between the claimant and another worker, [NAME_8], in which the claimant was observed to be saying that he received tips habitually if not every day. This it was put on behalf of the respondent ran contrary to the claimants asserted playing that respondent had not paid him tips in breach of its obligation to do so.

22. The respondent accepted that this disclosure was late but having spent time reviewing many hours of CCTV footage and other documentation the claim. It was put on behalf of [NAME_3] and the respondent that the disclosure was in accordance with the ongoing duty of disclosure and demonstrated the respondent’s engagement with the issues. The claimant objected on the basis that the application was late in the day, disclosure was beyond the date directed by the tribunal for disclosure to take place, and because he took the view that it was unfair. In discussion with me he highlighted that he considered it would take him many hours to review the footage.

23. Having had the opportunity to view the footage overnight and review the transcript of the video, the claimant agreed that the transcript was largely accurate save for one minor amendment which had little impact on the subject matter discussed.

24. I found that it would be in the interests of justice to allow the admission of the video evidence and transcript because it had not been available to the respondent earlier it was potentially determinative of one of the issues in the claim. I did not consider that the claimant was put to a particular prejudice other than the fact that this evidence had the potential to undermine part of his

Case Number: 6004441/2024 case. I did not consider that this would infringe the principles contained within the overriding objective because while there would be a need for further cross-examination to be put to the claimant I did not consider that this would be disproportionately long and therefore engage the parties beyond the duration of the listing of the full merits hearing.

Witnesses

25. The claimant gave evidence first. The claimant had informed the tribunal that he is suffering from anxiety, depression and post-traumatic stress disorder, conditions that he considers to have arisen in part or entirely from his time working for the respondent and specifically due the allegation of bullying he makes against [NAME_3]. While the claimant speaks English and understands English, English is not his first language and it was right that he had the assistance of a Spanish interpreter throughout the hearing.

26. Even allowing for the claimant’s proficiency in understanding and speaking English and his stated characteristics, I assessed the claimant as an unreliable witness. I reached this assessment on the basis of the evidence that was presented to the tribunal in respect of the elemental aspects of his claim.

27. Central to the claimant’s claim are allegations of detriment arising from making protected disclosures. The claimant’s witness statement failed to set out in any detail whatsoever what the claimant had said were the disclosures he made to [NAME_3]. Consequently, four hours were lost on day two of the hearing while the claimant took time to identify the disclosures that he made and the detriments that arose from those disclosures. Before embarking on this task, I explained to the claimant what the elements of the law of whistleblowing detriment are and the information that he needed to provide to the tribunal in order to for it to properly assess the allegations that he makes. It should be noted that the claimant had identified a chronology of events where he said certain things had happened in an attempt to comply with Employment Judge Khan’s direction that he provide further information. The document that the claimant prepared as a result could be described as a first stab at compliance with the direction but as I say, the claimant had failed to identify what the disclosures were.

28. After completing the task, it became clear that some of the dates where the claimant was alleging that he had interacted with [NAME_3] occurred while the United Kingdom was in lockdown prior to the releasing of restrictions imposed upon the general population by the then Prime Minister Boris Johnson on 12 April 2021. This is noteworthy because the claimant had stated with absolute authority that certain incidents that are said to have occurred on 3 March 2021, 13 March 2021, 3 April 2021 or 4 March 2021, occurred. When it became clear that the respondent’s restaurant was shut and therefore the claimant was not at work on these days, the claimant sought to assert that the events alleged happened on other days. However he was unable to provide the dates that he believed that the events actually took place upon. It is also the respondent’s case that other detriments namely

Case Number: 6004441/2024 those alleged to have taken place on 12 April 2019 and 13 April 2019 could not have occurred because the claimant was not at work that day.

29. Another matter that came to light during the hearing is the claimant’s reliance on certain conversations that he had recorded either by video or audio only. The claimant’s motivation for making the recordings is absolutely clear in that he alleges that the respondent and principally [NAME_3] was undertaking criminal activity in terms of the processing and production of products containing cannabis or its derivatives. During one such conversation the claimant says that [NAME_3] admits illegality. The recording of that conversation was played to the tribunal and the claimant was asked to confirm at which point it was said that [NAME_3] made the admission. It became clear that not only was there no admission identifiable from the recording but that the claimant’s perception or understanding of what had been said by [NAME_3] and subsequently relied upon by the claimant as an admission was wholly incorrect.

30. In respect of tips, the claimant alleges that he had received no cash tips from the start first lockdown on March 2020 up to May 2024 when the respondent’s system for the payment of tips changed. In his witness statement, [NAME_3] says that the respondent reviewed cash tips on 28 May 2025. Up to that point, the respondent relied on its employees to declare tips to HMRC and at times also to allocate tips in his absence. Respondent points out that it was only until 4 September 2024 whilst on sick leave did the claimant allege that he had not received tips prior to June 2024. The respondent says that this is significant because it was in June 2024 when tips were itemised as an item in its employees wage slips including the respondent. In cross-examination, the claimant’s case in respect of tips fluctuated. At the outset, he explained that from the start of the pandemic in March 2020 to May 2024 was the period during which the claimant had not received tips. However, his evidence changed when it was pointed out to him that there were occasions when he had received tips this information coming from answers that he provided voluntarily during the course of his cross-examination. The claimant attempted to explain away this discrepancy from his case by saying that the payment of tips on a particular occasion during this period was an anomaly and not the norm.

31. However, the respondent successfully applied for the admission into evidence of a video and transcript taken from the respondent’s CCTV system for 11 May 2024. This was a video of a conversation between the claimant and a co- worker, [NAME_8]. During the course of this conversation it can be clearly seen that the claimant is discussing the issue of tips but is discussing them in the context of the respondent’s proposal to increase the percentage of total tips shared between front of house and kitchen staff. The claimant can be clearly seen and heard to be vocalising his disquiet at the respondent’s proposal to increase the percentage from 10% to 25% and can be heard saying that he would effectively work to rule if the respondent’s proposed change took effect. It is my finding that this video and the claimant’s subsequently poor explanation as to the reason why he was having this conversation in this way

Case Number: 6004441/2024 as being entirely determinative of the claimant’s claim in respect of tips. Put simply, this claim was entirely misconceived.

32. In respect of the claim of holiday pay, the claimant was unable to confirm whether he had read, considered and acted upon the recommendation made to the parties by Judge Khan in his case management order. When I asked the claimant to explain to me the basis upon which he calculated his holiday pay claim, he was unable to set out a basis for the calculation. The claimant had relied upon a figure that he had seen on a screen at some point during the course of his employment. However, he failed to consider or accept that his holiday pay accrued up to the effective date of termination which in this case is 15 October 2024. In other words, and despite what he had been told by Judge Khan, the claimant failed to accept that he did not accrue holiday pay beyond the termination date and up to the end of the holiday pay which would have occurred on 31 December 2024.

33. I find the claimant’s failure to engage with the realities of his holiday pay claim as being unreasonable. The claim is untenable and it would have been obvious to him that it was doomed to failure but yet he continued to argue it before the tribunal many months after it would be absolutely clear to him that it had no prospects of success. I find it noteworthy that the claimant did not seek to ask [NAME_5] any questions about the calculation of his holiday pay despite my warning to him that it was important to put questions around this subject to her in order to challenge the respondent’s case. I find that the circumstances as they presented themselves to me during the course of this hearing including the overwhelming evidence in support of the respondent’s case, the claimant’s complete failure to provide an adequate explanation as to how this aspect of his case was promoted, coupled with his failure to engage with judicial observations has formed my view of the claimant in respect of this part of his claim and in terms of his credibility as a witness in totality.

34. Lastly, I turn to the ordinary unfair dismissal claim. By his own admission, the claimant has not worked or been able to work through ill health thing since his dismissal on 15 October 2024. Again, by his own admission, the claimant had taken annual leave from one July to 7 July 2024. He then wrote an email to [NAME_3] on 7 July 2024 telling him that he was feeling anxious and depressed. The claimant did not return to work after that. The claimant’s case in respect of unfair dismissal is that effectively the respondent jumped the gun; in other words, [NAME_3] who was dismissing officer dismissed the claimant on the grounds that he considered the claimant was incapable of performing his duties by way of ill health. The claimant’s claim is that had he been afforded more time by the respondent the claimant could have engaged with health practitioners and others to the extent that he could have returned to work, and it was suggested by way of a phased return.

35. However, there is no evidence in the bundle whatsoever to support this and further, it is not in dispute between the parties that despite [NAME_3]’s efforts to engage the claimant during the course of his period of absence prior to his dismissal with occupational health practitioners and to understand better

Case Number: 6004441/2024 the claimant’s health, the claimant was avoidant, obstructive and dismissive of [NAME_3]’s efforts. When asked how he substantiated his case here, the claimant’s position was that it was his feeling that his health would have improved had he been supported in the way that he has identified. It is my finding that this is another unrealistic case to be making in the total absence of any evidence whatsoever.

36. Consequently, I find that the claimant was a wholly unreliable witness, one whose evidence was liable to fluctuate between a range of answers depending on the circumstances of his cross-examination. At times, he would provide an answer which was clearly wrong when compared to the case that he was promoting and upon the realisation that he had made what was clearly an error he would put forward an alternative and unconnected explanation. This performance during the course of his cross-examination added to the general impression of implausibility that the claimant had created around his evidence. This means that when I considered his evidence against that of the respondent’s witnesses and where there was a dispute, I found in favour of the respondent’s witnesses.

37. [NAME_7] gave evidence on day five of the hearing for approximately 30 minutes. There had been an application for disclosure of text messages by the respondent concerning communications between her and [NAME_5]. What became clear to the tribunal is that [NAME_7]’s employment ended 16 April 2019 or thereabouts. In other words, her period of employment covered approximately two months of the claimant’s employment and therefore did not engage the vast majority of the allegations that the claimant makes against the respondent.

38. Furthermore, the events that [NAME_7] bore witness to took place almost 6 years ago and it is unsurprising that she was unable to confirm whether she had witnessed certain events alleged by the claimant. Perhaps, it is somewhat surprising that she was able to confirm that she had seen certain things happening on a particular date. She explained that she had seen an incident alleged to have taken place on 13 April 2019 where [NAME_3] is alleged to have told the claimant that he would pay tips in marijuana. The claimant says that on this date he complained which resulted in [NAME_3] yelling at him aggressively saying that it was his restaurant that he could do what he wanted to. The respondent asserts that not only did this not happen at all but it could not have happened on the day alleged because the claimant was not at work.

39. The reality of her evidence in my finding is that it was focused on her personal experience of working for the respondent and not of what happened to the claimant. Accordingly, I find her evidence to be of little relevance and value to the tribunal.

40. I found both [NAME_3] and [NAME_5] to be honest, straightforward and reliable witnesses. Both are well presented and charming individuals and I was careful to ensure that I did not allow their charismatic qualities to get in the way of my job in terms of evaluating their evidence. However, they were able to

Case Number: 6004441/2024 support their oral and written evidence with documents in the bundle. In particular, [NAME_5]’s comprehensive, detailed and informed explanation as to the calculation of the claimant’s holiday pay was convincing and compelling. [NAME_5] was able to explain to me the basis of calculation, the period of computation of the holiday pay paid, and the steps she took to calculate holiday pay. I accepted her evidence in its entirety.

41. Likewise, [NAME_3] was able to explain to the tribunal with clarity why the decision was taken to dismiss the claimant in the circumstances that were presented to him at the material time. It is clear that during the period of the claimant’s prolonged sickness absence he was concerned to better understand why the claimant was feeling as he was. [NAME_5], I accepted his evidence in its entirety.

Agreed facts

42. the claimant started working for the respondent, a restaurant in central London, on 11 February 2019. His employment was terminated by [NAME_3] on behalf the respondent on 16 October 2024. The details of his dismissal were communicated to him by way of letter transmitted by email on 17 September 2024. At that time, the claimant was informed that his employment was terminating on the basis of his ill-health (or in other words for reasons of capability), and that he was entitled to 4 weeks’ notice of termination.

43. An incident happened on 16 May 2025 the circumstances of which are in dispute between the parties. What is certain is that there was a heated discussion or argument between the claimant and [NAME_3]. During the course of that argument, both for claimant and [NAME_3] had cause to be in the large, walk-in fridge within the restaurant. Parts of the argument were witnessed by others including [NAME_5]. At the end of the interaction, the claimant left the restaurant and was suspended until 3 June 2024.

44. There was a disciplinary meeting between the claimant and [NAME_3] on 3 June 2024. The claimant registered his Claim with ACAS on 4 June 2024. The ACAS certificate was issued 10 June 2024. The claimant’s claim for these proceedings was received by the tribunal on 23 June 2024.

45. Also in June, the claimant received payslips recording the fact that the respondent had moved to a system of recording tips paid to its employees on their wage slips. It is a matter of dispute between the parties as to whether or not tips had been paid to front of house staff like the claimant and kitchen staff in the period following the reopening of the restaurant after the lockdown that ended on 12 April 2021. The respondent says that tips were either allocated by the restaurant management (namely [NAME_3], [NAME_5] or one other, [NAME_8]) or on the occasion that the restaurant management were not available, staff would be responsible for allocating tips to themselves from cash payments received directly paid by customers tips or, alternatively, via credit card payments. It was [NAME_5]’s unchallenged evidence that at a suitable point

Case Number: 6004441/2024 during the course of the working day, all of the tips would be collated and allocations made accordingly.

46. It was [NAME_5]’s unchallenged evidence that the method for the computation of tips allocated to staff was on the basis of the length of time that an employee had been at work on a particular day and their place of work (i.e. front of house or kitchen).

47. It can be seen from the payslips within the bundle that the claimant received £267.44 in tips on 15 June 2024, £376.21 in tips on 22 June 2024, £450.42 on 29 June 2024 and £333.33 on 6 July 2024. It is also not in dispute between the parties that prior to June 2024, the claimant would not have received any documentary evidence of the fact that he had received tips. It is my understanding of the claimant’s case that due to a lack of documentary evidence as to the payment of tips, tips were not paid contrary to the contractual obligation to do so. The respondent’s position is that having taken advice as to a potential tax risk associated with paying tips in cash, the respondent took the decision to manage the payment tips formally.

48. The claimant was on pre -booked annual leave from 1-7 July 2024. On 7 July 2024, he wrote to [NAME_3]. In his email, the claimant tells [NAME_3] that he feels ‘too bad to return to work because of the bullying I have been receiving from you.’ He goes on to explain that he considered that he had been the subject of bullying for ‘many years’ and described the two weeks of suspension as ‘unfair’. Further, he identifies that the bullying continued, got worse for him, and that on 5 July he went to the doctor because he was ‘feeling very depressed and anxious and he recommended that it would be best to stay away from work’. The claimant identified that he was fearful of [NAME_3], that he had continued working but in his own words, ‘I can’t take it any more, I can’t even get out of bed’. He finishes the email by explaining that he had been sick for seven days of his leave, that he placed himself within the care professionals and that it was his view that [NAME_3] had caused his anxiety and depression. The email does not disclose when the claimant anticipated being available for work.

49. [NAME_3] responded on 9 July 2024. He addressed the issues of the claimant sickness absence, specifically pointing out to the claimant that the claimant had a period of pre-booked annual leave from one July until seven July that he had not reported that he was unfit for work and unfit to take this leave and therefore the claimant’s request for it to be regarded sickness was not accepted. Further, [NAME_3] pointed out the claimant that he would be able to ‘self certify’for the period running eight – 14 July but he would also need to provide a fit note from 15 July onwards. [NAME_3] points out that the claimant failed to provide any indication as to an expected return date or duration of his absence. [NAME_3] reiterated the respondent’s policy is to the reporting of sickness.

50. In addition, [NAME_3] said the following:

Case Number: 6004441/2024 “Your email has highlighted some serious concerns you hold with the workplace, and I feel it would be valuable to discuss this further so we can better understand your concerns and how we can address these. I would like to propose a meeting at a time and date suitable to you, do you have a preferred date that you feel would be feasible to meet and discuss the matters?”

51. [NAME_3] wrote to the claimant on 19 July 2024 to provide the outcome of the disciplinary meeting held on 3 June 2024. In the letter, [NAME_3] communicates his finding that serious allegations of misconduct of substantiated against the claimant namely objectionable behaviour towards colleagues namely raising his voice and arguing with [NAME_3] on 29 April 2024, failing to show acceptable customer service having been the subject of 14 negative reviews on trip advisor and Google, a failure to follow the respondent’s rules and procedures with tips may be taking tips dared not been designated to him but for other employees and manipulating the number of covers to the till system in order to trigger the automatic 10% service charge for the claimant’s financial gain. The claimant was also accused of drinking stock belonging to the respondent are not paying for it. The letter records that at the hearing, the claimant had been unable to provide [NAME_3] with a reasonable explanation and that the claimant accepted responsibility for his actions and apologised. The letter stands as a record of a final written warning issued to the claimant insofar as conduct and performance were concerned.

52. The claimant appealed the disciplinary outcome decision by way of a letter dated 22 July 2024. The basis of the appeal was that the claimant felt the decision was unfair, that he had never been rude to [NAME_3], or added 10% tables in circumstances as alleged. He denied keeping back cash tips that belong to other colleagues and that he had paid for all of his drinks. He also expressed the view that he had good reviews on trip advisor and that the bad ones may not be genuine ones. The letter identifies that an appeal process would be triggered and how it would be dealt with including notification of a appeal hearing to take place on 1 August 2024 at the restaurant.

53. By way of email on 24 July 2024, the claimant informed the respondent that he had been warned by his doctor that ‘I cannot go near the restaurant or no one who has a relationship with your company since this would seriously affect my recovery’. There are further emails from the claimant in which he reiterates that he would not be able to attend the meeting until his doctor says that he can return to work. In particular, the claimant says, ‘the people you send have a direct relationship with your company.’ The claimant points out that in his view if the appeal proceeded in his absence he would consider it to be an unfair decision and that the appeal should proceed once he returned to work.

54. On Thursday, 25 July 2024, [NAME_3] wrote to the claimant to inform that the appeal could be rescheduled but not delayed indefinitely. The claimant was invited to provide those dates at a time suitable to him and pointed out that the meeting did not need to be in person. In addition, [NAME_3] addresses concerns around payments made to the claimant which the claimant had raised in a series of emails and can be seen within the bundle.

Case Number: 6004441/2024

55. It is not in dispute between the parties that the claimant continue to raise concerns with regards to payments he believed he was owed throughout the period of his absence through sickness and after the termination of his employment.

56. On 21 August 2024, [NAME_3] wrote to the claimant to establish the nature and extent of his illness, a likely return date and arrangements to ensure the claimant safety upon his return. A date of 2 September 2024 was proposed. The claimant’s response was to identify that he was not well enough to have the meetings and repeating his belief that the psychological damage he had sustained had been caused by [NAME_3]. However, he did identify that he was able to have a meeting in February 2025, ‘if my therapist thinks it’s appropriate.’

57. On 23 August, [NAME_3] responded to acknowledge the claimant concerns and to request the claimant’s consent to approach a confidential occupational health report and thereafter next steps to understand more about the claimant’s state of health. The claimant responded in the following way: ‘unfortunately I cannot attend to any of your documents for the meeting. I hope you understand, but you continue to press and put my health at risk.’ The claimant made clear that he considered contact from [NAME_3] is amounting to pressure and worsening his condition.

58. In response, [NAME_3] expresses disappointment at the claimant’s refusal to consent to a medical report on the state of his health and pointed out that while the claimant had a right to refusal of such a request that it would be open to the respondent to ‘make decisions concerning your (the claimant’s) future employment without the benefit of appropriate medical evidence and advice’.

59. On 4 September 2024 the claimant was invited to a medical capability meeting to be held on 14 September at the restaurant. The purpose of the meeting was to discuss the claimant’s absence from work due to ill-health, the likelihood of him returning to work in the ‘near future’, whether there were any reasonable adjustments that could be made to facilitate the claimant’s return to work, and whether there were alternative employment options available and suitable for the claimant. Specifically, the letter says the following:

“I have to inform you that if the meeting indicates that there is little likelihood of a return to work within a reasonable timescale and there are no reasonable adjustments that can be made or alternative employment available, then the outcome may be notice of the termination of your employment on the grounds of ill-health. I sincerely hope that this will not prove to be the case, and for this reason if there is any relevant information which you believe we ought to consider, then it is in your own interest to make it available to us for the meeting.”

Case Number: 6004441/2024 60. It is clear by at least 5 September the respondent was aware that the claimant has presented a claim to the tribunal. In an email to the claimant on this date, [NAME_3] writes the following:

“just to fully understand your outlandish claim, when the company started declaring all staff tips through PAYE in early June, that’s apparently when you first started receiving tips from us? And during the previous five years of employment with us, during shifts you were working alongside your colleagues, they were receiving their tips, but not you?”

61. The claimant responded as follows on the same day:

“we will resolve this issue in the employment Court with the evidence”

62. [NAME_3] wrote to the claimant again on 16 September 2024 with a view to rescheduling the medical capability meeting to Friday 20 September. The claim was sent a second letter on the same date identifying that if the claimant did not wish to attend the rescheduled medical capability beating that he could in place of that obligation answer questions relating to his health. The questions were set out in the letter. In response, the claimant reiterated his position that he would not be able to attend any meeting until 17 February 2025 when he assessed that he may be available and well to attend a meeting. The claimant signs off the email by saying that when the date he has indicated approaches he will send an email to [NAME_3] to let him know if he has recovered to be able to attend the meeting. In a further email, the claimant expresses his view that he is being harassed by [NAME_3] and reiterating that he will not attend a meeting.

63. On 17 September, [NAME_3] wrote to the claimant. The letter sets out that in light of the claimant’s indication that he would not attend a medical capability hearing, that he had considered the claimant’s absence meant that the respondent had to make a decision as to the claimant’s continued employment. The letter identifies that the claimant’s absence from 12 July 2024 with mixed anxiety and depressive disorder was ongoing, that the claimant had refused to consent to a medical report or cooperate with any attempts to obtain a medical opinion on a likely return to work date, the claimant’s length of service with the respondent and the claimant’s admission that he would not be able to return to work until February 2025. The letter states that [NAME_3] considered the evidence and concluded that there was no prospect of the claimant returning to work within the foreseeable future as he saw it. In those circumstances, [NAME_3] considered that it was necessary to find a permanent replacement for the claimant and consequently terminated the claimant’s employment on the grounds of ill- health. He was informed that he was entitled to receive four weeks’ notice of termination and that his employment would end on 15 October 2024. He was also informed of his right of appeal of the decision. The claimant did not appeal the decision.

The claimant’s case

Case Number: 6004441/2024

64. Claimant asserts that from approximately two weeks after the commencement of his employment and thereafter throughout his employment, he observed that the respondent and in particular [NAME_3] (periodically assisted by [NAME_5]) was concerned with the selling and production of drugs contrary to the Misuse of Drugs Act 1971, namely cannabis. He says that he saw variously the sale of cannabis to the respondent staff, and the preparation of substances from cannabis. In support of his belief that what he was seeing was the processing and handling of cannabis within the restaurant, the claimant recorded a number of videos which clearly show the handling of and existence of a green substance resembling cannabis.

65. The claimant says that at various times he challenged [NAME_3] about what he was seeing. A number of the alleged protected disclosures that he relies upon in this claim are ones where he either asks [NAME_3] to stop smoking cannabis or points out to him that what he is doing with cannabis is unlawful and illegal.

66. The claimant says that as a consequence of raising these concerns he suffered a series of detriments which can be described as incidents of bullying; harsh, targeted mistreatment which the claimant alleges he would not have received had he not raised the protected disclosures he alleges.

67. The claimant makes two claims of unfair dismissal. The first is an automatic unfair dismissal claim contary to section 103A Employment Rights Act 1996 (hereinafter referred to as “ERA”). He relies on his alleged and purported protected disclosures as forming the basis of the principal reason for his dismissal.

68. In the alternative, the claimant says that the respondent misdirected itself as to the basis of his dismissal which itself was founded on the lawful justification of capability. In evidence, the claimant asserted that he believed that the respondent had acted hastily and unfairly by not allowing him more time to show that he was capable of returning to work. The claimant explained in evidence that he felt that had he been offered the opportunity of engaging practitioners, coupled with more time, that he would have been able to return to work. However, he also confirmed that he has been unable to return to work following the termination of his employment with the respondent that occurred over a year ago. He is currently medically unfit to return to work.

69. The claimant makes two claims of unlawful deductions from wages in the form of cash tips and holiday pay.

The respondent’s case

70. The respondent denies the facts relied upon by the claimant. In other words, there is a complete conflict of evidence between the parties as to what

Case Number: 6004441/2024 actually happened in respect of the relevant factual issues that underpin the claims in this case.

71. [NAME_3] is the person who is the alleged recipient of all of the claimant’s alleged protected disclosures and is the perpetrator of the alleged detriments relied upon by the claimant. In evidence, [NAME_3] denied the fact of the disclosures and further, denied all of the acts alleged against him by the claimant. He reiterated the respondent’s position that the claimant’s dismissal was unrelated to any purported protected disclosures and was entirely due to the claimant’s prolonged absence from work spanning five months. In evidence, [NAME_3] pointed to the claimant’s persistent refusal to engage with any step relating to the assessment of his health. He considered that to be unreasonable and left the respondent with no option but to continue to assess the impact of the claimant’s absence from work in terms of the respondent’s business.

72. In conclusion, [NAME_3] explained to the tribunal that in the circumstances that were presented to him, the claimant had not been able to explain or provide comfort to the respondent around a likely return to work date.

73. [NAME_5] gave evidence in relation to payments principally tips and holiday pay. [NAME_3] also covered tips. The evidence in respect of tips was consistent in that in periods where the respondent was open for business, tips were shared among all of its staff, including the claimant.

74. In respect of holiday pay, [NAME_5]’s evidence is recorded later in this judgment.

Issues to be determined

75. Protected disclosure (sections 43A-C, Employment Rights Act 1996 “ERA”))

1.1 Did the claimant make a qualifying disclosure? The tribunal will need to decide: What did the claimant say or write? When? To Whom? The claimant alleges that he made protected disclosures to [NAME_3] once or twice a week, between March 2019 and July 2024, when he complained that [NAME_3] was selling marijuana to staff in the restaurant where food was being served.

1.2 In respect of each alleged disclosure: 1.2.1 Did the claimant disclose information? 1.2.2 Did the claimant reasonably believe that the disclosure tended to show one or more of the categories of wrongdoing set out under section 43B(1) [the claimant to specify]? 1.2.3 Did the claimant reasonably believe that the disclosure was made in the public interest? 1.3 If any of these alleged disclosures are found to be qualifying disclosures, were they made to the employer (within the meaning of section 43C ERA) and therefore amount to protected disclosures?

Case Number: 6004441/2024

76. Detriment (section 47B, ERA)

2.1 The claimant complains about the following alleged treatment:

2.1.1 [NAME_3] bullied the claimant on a daily basis by: following the claimant around the restaurant; shouting at the claimant for making small mistakes; and reprimanding the claimant at the end of day in front of colleagues which embarrassed him. 2.1.2 [NAME_3] failed to pay the claimant cash tips each day from late 2019 to 11 July 2024. 2.2 Was the claimant subjected to that treatment by respondent on the ground that he had made a protected disclosure?

77. Automatically unfair dismissal – protected disclosure (section 103A, ERA)

3.1 Was the reason or principal reason for dismissal that the claimant made a protected disclosure?

78. Unfair dismissal (section 98, ERA) 4.1 If not, has the respondent shown that the reason or principal reason for dismissal was capability (ill-health)? It must prove it had a genuine belief in the misconduct and that this was the reason for dismissal. 4.2 If so, was the dismissal fair or unfair in accordance with section 98(4) ERA and, in particular, did the respondent in all respects act within the band of reasonable responses? This is likely to involve consideration of whether: 4.2.1 The respondent genuinely believed the claimant was no longer capable of performing his duties; 4.2.2 The respondent adequately consulted the claimant; 4.2.3 The respondent carried out a reasonable investigation, including finding out about the up-to-date medical position; 4.2.4 The respondent adequately considered redeployment as an alternative to dismissal; 4.2.5 The respondent could reasonably be expected to wait longer before dismissing the claimant; and 4.2.6 Dismissal was within the range of reasonable responses. 4.3 If the dismissal was unfair, the following issues may also be considered: 4.3.1 Would it be just and equitable to reduce the amount of the claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to section 122(2) ERA; and if so to what extent? 4.3.2 Did the claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent; and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to section 123(6) ERA?

Case Number: 6004441/2024 4.3.3 Should the compensatory award be reduced to reflect the possibility that the claimant would still have been fairly dismissed either at the time of dismissal or later (see: Polkey v AE Dayton Services Ltd [1998] ICR 42; and [COMPANY_9] v [NAME_9] and ors [2007] ICR 825))?

79. Unlawful deductions from wages (section 13, ERA)

5.1.Did the respondent make unlawful deductions from the claimant’s wages and if so, how much was deducted? The claimant claims that the respondent made the following deductions (to be quantified) by failing to pay him: 5.1.1For cash tips on each day. 5.1.2 His full entitlement to holiday pay accrued on termination.

80. Time limits (sections 23 and 48 ERA)

6.1 In respect of any of the complaints brought under section 48 ERA (protected disclosure detriment) which are prima facie out of time: 6.1.1 Was it part of a series of similar acts or failures? 6.1.2 Was it reasonably practicable for the complaint to be presented in time, and if it was not, was the further period taken reasonable? 6.1.3 In respect of any of complaint brought under section 23 ERA (unlawful deductions from wages) which is prima facie out of time: 6.1.4 Was it part of a series of deductions the last of which is in time? 6.1.5 Was it reasonably practicable for the complaint to be presented in time, and if it was not, was the further period taken reasonable?

Law and procedure

WHISTLEBLOWING DETRIMENT- Statutory framework

81. The test for a whether a disclosure is a qualifying protected disclosure is found within section 43B of the Employment Rights Act 1996:

(1) “In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, [F2 is made in the public interest and ] tends to show one or more of the following—

(a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal

Case Number: 6004441/2024 obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

82. A disclosure made to a prescribed person can amount to a protected disclosure pursuant to section 43F.

83. The substantive right not to be subject to a detriment is contained within section 47B(1): “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

84. The burden of proof is governed by section 48(2): “On a complaint under subsection (1) it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

Authorities

85. The Tribunal is versed in the composite elements of a qualifying disclosure. The basic elements were helpfully distilled by the EAT in Williams v Michelle Brown AM [2019] (UKEAT/0044/19) [paragraph 9]:

“First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paras (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.”

86. In [NAME_10] v London Borough of Wandsworth [2018] IRLR 846, the Court of Appeal focused on the context in which the statement was made and explained at paragraph 35 and 41: “35. In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in sub-s (1).

Case Number: 6004441/2024 41. It is true that whether a particular disclosure satisfies the test in section 43B(1) should be assessed in the light of the particular context in which it is made. If, to adapt the example given in para. [24] in the [NAME_11] case, the worker brings his manager down to a particular ward in a hospital, gestures to sharps left lying around and says "You are not complying with Health and Safety requirements", the statement would derive force from the context in which it was made and taken in combination with that context would constitute a qualifying disclosure. The oral statement then would plainly be made with reference to the factual matters being indicated by the worker at the time that it was made. If such a disclosure was to be relied upon for the purposes of a whistleblowing claim under the protected disclosures regime in Part IVA of the ERA, the meaning of the statement to be derived from its context should be explained in the claim form and in the evidence of the claimant so that it is clear on what basis the worker alleges that he has a claim under that regime. The employer would then have a fair opportunity to dispute the context relied upon, or whether the oral statement could really be said to incorporate by reference any part of the factual background in this manner.”

87. The law is clear that the claimant must believe that he is making the disclosure in the public interest (a subjective test) and that belief has to be reasonably held (the objective test). Guidance on whether the disclosure was made in the public interest was set out in Chesterton Global Ltd v Nurmohamed [2017] IRLR 837. In particular, the Tribunal should consider all the circumstances. In contrast to section 103A, where making a protected disclosure has to be the sole or principal reason for the dismissal, it has been held that the that the protected disclosure must 82. materially influence the treatment of the whistleblower; Fecitt v NHS Manchester [2012] IRLR 64.

88. There must be a causal link between the disclosure and detriment to satisfy section 47B. The EAT in London Borough of [NAME_12] v [NAME_13] 2003 IRLR 140 restated that the statutory test required more than some connection on the basis it was “related to” the disclosure and need for the disclosure to be part of the motivation for the detriment relied upon. At paragraph 16:

“16. It is thus necessary in a claim under s. 47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that "but for" the disclosure the act or omission would not have occurred is not enough (see Khan). In our view, the phrase "related to" imports a different and much looser test than that required by the statute: it merely connotes some connection (not even necessarily causative) between the act done and the disclosure. On any view the failure of [NAME_14] to answer [NAME_13]'s letters was related to the protected disclosure: after all, the disclosure was the fundamental subject matter of the letters and they would never have been written but for the fact that the disclosure had been made. Likewise any failure on the part of the Council to look after [NAME_13] related to the disclosure: the awkward situation created by the disclosure was the very reason why he needed help. But that

Case Number: 6004441/2024 does not answer the question whether that formed part of the motivation (conscious or unconscious) of [NAME_14] or [NAME_15]. [NAME_14], for example, might have failed to answer the letters because he was annoyed by the original report and regarded whistleblowers as disloyal and a nuisance: that would indeed be a deliberate omission "on the ground that" he had made the protected disclosure. But he might in principle equally have failed to do so for one of a number of other reasons.”

89. Detriment has the same meaning as within discrimination law. [ADDRESS] of Appeal in Jesudason v Alder Hey Children’s NHS Foundation Trust [2020] IRLR 374 at paragraph 27 stated that:

“In order to bring a claim under section 47B, the worker must have suffered a detriment. It is now well established that the concept of detriment is very broad and must be judged from the There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistle- blowing cases. In Derbyshire v St. Helens MBC [2007] UKHL 16; [2007] ICR 841, paras. 67-68 Lord Neuberger described the position thus:

“67…. In that connection, Brightman LJ said in Ministry of Defence v Jeremiah [1980] ICR 13 at 31A that “a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”.

68. That observation was cited with apparent approval by Lord Hoffmann in Khan [2001] ICR 1065, para 53. More recently it has been cited with approved in your Lordships' House in [NAME_16] v [NAME_30] of the Royal Ulster Constabulary [2003] ICR 337. At para 35, my noble and learned friend, Lord Hope of Craighead, after referring to the observation and describing the test as being one of “materiality”, also said that an “unjustified sense of grievance cannot amount to ‘detriment’”. In the same case, at para 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added: “If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice”.”

AUTOMATIC AND ORINARY UNFAIR DISMISSAL

Statutory framework 90. Section 103A ERA provides that:

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

Case Number: 6004441/2024

91. Under s.94 of the ERA an employee has the right not to be unfairly dismissed. Whether or not a dismissal is unfair is governed by s.98:

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) 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. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment…

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

Relevant authorities

92. Pursuant to section 103A, the reason or the principal for the dismissal must be the protected disclosure. This must be the reason that operated on the decision maker’s mind at the time of the dismissal; [NAME_17] v [NAME_18], Hay and Anderson 1974 ICR 323, CA.

In Beatt v Croydon Health Services NHS Trust [2017] IRLR 748, Underhill LJ stated at paragraph 30 that:

Case Number: 6004441/2024 “…the essential point is that the ‘reason’ for a dismissal connotes the factor or factors operating on the mind of the decision-maker which cause them to take the decision – or, as it is sometimes put, what ‘motivates’ them to do so.” 93. The EAT has recently emphasised the importance of the Tribunal clearly identifying the reason for dismissal in Accattatis v Fortuna Group (London) Ltd [2024] EAT 25. Where the Tribunal has identified multiple reasons which had some bearing on the decision to dismiss, the Tribunal must determine which was the principal reason for the dismissal.

94. Where an employee relies on a number of protected disclosures but the Tribunal find that only some of these are qualifying disclosures pursuant to section 43B, the focus must be on the qualifying disclosures and whether these are the principal reason for the dismissal; Secure Care UK Ltd v Mott EAT 0122/20.

95. There is no general rule on how long an absence or medical health condition must apply before the employer can dismissal on grounds of medical capability and each case will depend on its own facts; [NAME_19] v [COMPANY_19] 1977 ICR 301, EAT.

96. Whether the decision to dismiss is reasonable for medical capability will depend on a broad range of factors including the consultation, medical evidence regarding prognosis and future absences, length of absence and likelihood of improvement. It was noted by Underhill LJ in In O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145 at paragraph 37 that:

“More generally, the proposition that it was unfair of an employer to decide, after a senior employee had already been absent for over twelve months and where there was no certainty as to when she would be able to return, that the time had come when the employment had to be terminated, seems to me to require very careful scrutiny. The argument “give me a little more time and I am sure I will recover” is easy to advance, but a time comes when an employer is entitled to some finality. That is all the more so where the employee had not been as cooperative as the employer had been entitled to expect about providing an up- to-date prognosis (see para. 15 (7)-(9) above) and where the evidence relied on at the appeal hearing was only produced at the day of the hearing and was not entirely satisfactory.”

97. To the extent that the Claimant is asserting that the Respondent contributed or caused the Claimant’s medical conditions (and therefore affecting his capability to perform his role) the case of Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] EWCA Civ 498 assists. This case confirms that whether the employer contributed to the employees lack of capability is not determinative on whether the dismissal is unfair or not.

98. The general test the Tribunal is to apply in assessing reasonableness is the

Case Number: 6004441/2024 band of “band of reasonable responses” test; Foley v Post Office [2000] ICR 1283, p. 1292. There is a band of reasonableness within which one employer might reasonably take one view and another might reasonably take a different view; British Leyland (UK) Ltd v Swift [1981] IRLR 91, para 11.

99. In respect of procedural fairness, the Tribunal must assess whether any procedural defects, taken either on their own or accumulatively, will mean that the decision was unfair. An employer will not always follow a perfect procedure and it will often be possible to identify flaws in the process. Langstaff J stated in Sharkey v Lloyds Bank Plc UKEATS/0005/15/SM at paragraph 25:

“The question here, as it seems to me, is whether on a fair reading of the Tribunal decision the Tribunal was making the decision it did to the effect that the dismissal here was not unfair because no matter what the errors in process the dismissal would have been fair anyway or whether it was assessing what actually happened and asking whether in all those circumstances, focusing upon the employer's reasons, the dismissal was on balance fair notwithstanding the flaws. It will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer's process. It will be and is for the Tribunal to evaluate whether that is so significant as to amount to unfairness, any prospect of there having been a dismissal in any event being a matter for compensation and not going to the fairness of the dismissal itself.”

100. The House of Lords in Polkey v AE Dayton Services Ltd [1988] ICR 142 confirmed that procedural fairness is an integral part of the reasonableness test under s.98(4). Unlawful deductions 101. Both claims (unpaid tips and unpaid holiday pay) fall to be considered under s.13 ERA 1996. 13.— Right not to suffer unauthorised deductions. (1) 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

Findings of fact and reasons

Protected disclosures and detriment

102. In the paragraphs below the claimant relies on the number of protected disclosures. Those disclosures are set out in the document the claimant

Case Number: 6004441/2024 prepared in response to Employment Judge Khan’s direction that he provide further details of the allegations protected disclosure namely disclosures and detriment he was subjected to.

103. However, it must be noted that it that aside from headline summaries of the kind that are set out in bold to describe the protected disclosures below, the claimant has provided nothing else in writing to set out the facts of each and every incident. For example, he has not explained how an incident had developed and in most if not all cases, failed to describe (beyond the headline) what it was he was complaining of.

104. Given the substantial paucity of documentary factual evidence, including an almost total lack of any evidence whatsoever to show that the claimant had either made protected disclosures or had suffered detriments, it was understandable that the focus of the respondent’s cross examination and of my questions to the claimant were to attempt to bridge the substantial evidential gap. It is my finding that despite extensive cross examination the claimant has been unable to fill the evidential gap either sufficiently or at all. This is because in the main, he discussed things in terms of generalities rather than in relation to the specific issues that he had raised within the claim. While I accept that most of the allegations he raises are old it is nonetheless the case that despite best efforts the claimant failed to say anything more of substance which would allow for a substantive evaluation of the factual matrix that underpins his claim.

105. It is important for the judgment to record the shortage of evidence received from the claimant. I believe that the claimant begun to realise during the course of the hearing that he had substantially underestimated what was required of him in terms of the preparation of his witness evidence. It is my finding that the claimant failed to engage at all with the case management order dated 30 November 2024 arising from the hearing that took place on 27 November 2024. This is clear to me because the claimant failed to read direction number 21 which explains what a witness statement is. I can reach this finding because I asked the claimant whether he had read and understood this direction and his answer was no.

106. Even allowing for him being a litigant in person and that English not being his first language, I find that the claimant allowed himself to become fixated with the respondent’s minor procedural non-compliance with the case management orders at the expense of his case preparation and case compliance. Another sign of this is the claimant’s failure to have prepared any questions whatsoever for the respondent’s witnesses prior to the hearing.

107.

Accordingly, I am able to make a finding in a straightforward manner and on the balance of probabilities in respect of each and every allegation that the claimant makes. In each and every case I have found against the claimant. I find against the claimant because I found him to be a witness whose account lacks credibility and in some instances was implausible. In others, such as in respect of the claims of tips and holiday pay I find them to be entirely misconceived and in the case of tips (as shall be seen below) it is abundantly

Case Number: 6004441/2024 clear to me from the evidence presented to the tribunal that this claim has been fabricated as it is my finding that the claimant continued to receive tips throughout his employment with the only breaks within that period being due to the enforced closure of the restaurant due to the pandemic lockdowns that occurred.

108. There is one further but important factual and legal issue that needs to be resolved. The basis of the claimant’s alleged protected disclosures is that the respondent, primarily through [NAME_3] was concerned with the buying, selling of marijuana and the production of products associated with marijuana/cannabis and some of its derivatives.

109. The claimant’s position is that it looked like cannabis and smelt like cannabis. Further, he said that at no time during the course of his employment did he have any conversations with [NAME_3] or anybody else from the respondent that informed him not only of [NAME_3]’s assertion as set out in this witness statement that he is the director and owner of a [NAME_20] known as ‘[NAME_20]’ which trades as’ [NAME_20]’.

110. This is important because while [NAME_3] says that he is running an entirely legal business, the claimant asserts otherwise and stresses that it is his view that not only was cannabis being used as opposed to CBD but also that he had received a number of admissions from [NAME_3] that he was processing cannabis. One of those admissions comes from a recorded conversation between the two men and is set out in a transcript prepared by the claimant by the claimant that is contained within the claimant’s bundle starting at page 139. Having listened to the recording of the conversation between the two men that took place on 22 April 2023 and reviewing the transcript, it is my finding that the transcript is unintelligible and bears little relation to what was discussed between the parties.

111. Further, it is clear that the claimant does not elicit the admission he alleges from [NAME_3]. What can be heard from [NAME_3] is an explanation as to the differences between CBD and the active ingredient in cannabis, THC. Thereafter, there is a discussion prompted by the claimant as to why it appeared to him to be permissible to smoke cannabis in the street and in response [NAME_3] suggests that he discusses the matter with Sadiq Khan, the Mayor of London. This recording was played within the tribunal for all to hear. After, I asked the claimant to identify the part of the recording that he relies upon in terms of the admission he asserts. It is absolutely clear that the claimant’s assertion of an admission of criminality by [NAME_3] is wholly misconceived.

112. In evidence, [NAME_3] told the tribunal that he and the claimant had a conversation on 4 April 2024. [NAME_3] remembers this night because the claimant had been observed on the restaurant’s CCTV footage taking a picture of CBD within the restaurant. [NAME_3] said that he called the claimant to his office and explained what it was he was doing together with two others and [NAME_5]. He also says that he took the claimant to the [NAME_20] website and showed him the CBD flower. This evidence

Case Number: 6004441/2024 was unchallenged by the claimant although I infer from the claimant’s case that he harboured the belief on an ongoing basis that cannabis and not CBD was at play here.

113. However, what I also find is that the claimant failed to take any steps to inform himself as to the existence and legality of CBD until during the course of the hearing when he confirmed this to the tribunal. In addition, he informed the tribunal that he had undertaken a legal review of what was capable of being legally sold (CBD) and what was illegal to sell or otherwise process (cannabis/marijuana). As part of his admissions he was able to quote the relevant regime is contained within the Misuse of Drugs Act 1971. Therefore it is clear that had he chosen to, the claimant could have taken steps to find out more about what was going on. He chose not to.

114. My finding is that the claimant’s belief that what was going on concerned cannabis as opposed to CBD was not reasonably held. He could and should have done more to find out about what CBD was. My finding in this regard is reinforced by the claimant’s failure to engage with the police or any other law enforcement body over what could be regarded on any level as the industrial production of purported illegal products. When asked why he had not contacted the police, the claimant informed the tribunal that having discussed the matter with his mother she told him that it would be dangerous for him to do this and therefore he did not report the matter to the police. That remains the case to this day and one wonders what the claimant thinks the tribunal would do with information concerning illegal activities. I find the claimant’s assertion of a fear of potential reprisal implausible.

115. In addition, I am prepared to make the finding based upon this recording alone because it can be clearly heard that the claimant and [NAME_3] are discussing matters relating to the substance that the claimant was seeing in the restaurant which he now asserts to be cannabis as opposed to CBD. I find on the balance of probabilities that the claimant knew that CBD was being used and processed within the restaurant and that he knew this information because [NAME_3] had discussed it with him.

116. Therefore it follows that the protected disclosures are not made out because the claimant did not have a reasonable belief that something illegal was afoot.

Protected disclosure one and related detriments

117. On 31 March 2019, the claimant alleges that he reported irregularities to [NAME_3] that he was selling marijuana to the staff and from that day on the claimant alleges that he was mistreated.

118. The claimant’s witness statement and claim form are devoid of any details in relation to this allegation. Both when providing the tribunal with the detail of this allegation and in evidence, the claimant was clear that what he

Case Number: 6004441/2024 did on this date was to ask [NAME_3] why he was selling marijuana to the staff. As a consequence of this, the claimant alleges the detriment namely mistreatment at the hands of [NAME_3].

119. The claimant’s allegation here is substantiated in part by the evidence of [NAME_7] who stated in evidence that not only did she recall the evening in question (despite her witness statement not referring to a single incident alleged by the claimant) where the claimant that he smelt really strongly of cannabis and that he was leaving cannabis next to bread being served to customers including children.

120. It is my finding that the evidence of these two witnesses is at odds. The claimant was clear that he simply asked [NAME_3] what he was doing.. [NAME_3] was clear that this conversation as described by the claimant simply did not happen. I prefer the account of [NAME_3]. First because it appears to me that [NAME_7] is describing another incident that the claimant relies upon and not this one. Second, it does not appear to me to be remotely realistic that [NAME_3] would lose his temper over being asked the question that the claimant claims that he asked. The claimant has failed to establish on the balance of probabilities that the events alleged actually took place.

121. In any event, it is absolutely clear that even if the claimant’s case is taken at its highest, the claimant is not making a protected disclosure of the kind anticipated by the authorities such as [NAME_10] (see above). It is my finding that the disclosure lacks specificity, does not convey information tantamount to a disclosure, and does not reflect a public interest concern in any way shape or form.

122. In reaching this finding it must follow that the detriment alleged to have occurred in the aftermath of this purported protected disclosure namely for April 2019, 8 April 2019, 12 April 2019, 13 April 2019, 19 January 2020, 21 January 2020, and 3 March 2021 all fail. For the record, the claimant confirmed that he was withdrawing the allegation said to have occurred on 24 April 2019.

123. In respect of all of the detriments alleged and in any event, I prefer the evidence of [NAME_3] over that of the claimant. [NAME_3] denies each and every allegation of detriment on the basis that it is his position that they simply did not occur. I accept his evidence. The reasons for this finding are set out earlier in this judgment and relate entirely to my findings around the relative reliability of the witness evidence I heard. In addition, I consider all of these allegations to be of considerable age and consider that the claimant is able to recall these incidents as occurring on a particular date in the way that he has alleged. I am reinforced in this view in respect of some allegations which concern 2021.

124. As I have set out earlier in this judgment, it was pointed out to the claimant that some of the allegations he makes of detriment occur in the period

Case Number: 6004441/2024 that the restaurant would have been closed as a result of lockdown restrictions at that time. My observation of the claimant whilst giving evidence and upon learning of this information was that he was unable to offer a plausible explanation as to how he could be wrong about the dates and it is clear to me that the claimant was simply plucking dates out of thin air to make out his case.

125. It is also my finding that in each and every case of detriment alleged as set out in paragraph 120 above, the claimant fails to establish a link between the alleged conduct on the part of [NAME_3] and the protected disclosure alleged.

Protected disclosure two and related detriments

126. On 13 March 2021 and after smelling marijuana on [NAME_3], the claimant alleges that he told [NAME_3] that he smelled of marijuana and in response, [NAME_3] told the claimant that it was not his problem, but began to yell at him before embarrassing the claimant in front of the customer.

127. I find on the balance of probabilities that this incident simply did not happen. Not only is it the case that this was during the time when the restaurant would have been closed as a consequence of government enforced but it is also a pandemic lockdowns it is denied in its entirety by [NAME_3] and as before, I accept his evidence over that of the claimant. In addition, and in the same way as protected disclosure one, I find that not only has the claimant failed to communicate information that could amount to a protected disclosure (see [NAME_10] above), but he has also failed to demonstrate he was communicating information of any substance was doing so in the public interest.

128. It follows that the detriments relied upon by the claimant and said to have occurred on 24 March 2021 and either 3 April 2021 or 4 March 2021 simply could not have occurred or, alternatively because the protected disclosure has not been made out either on the facts and/or as a matter of law.

129. In any event and for the avoidance of any doubt, in the case of each detriment relied upon as set out in the paragraph above, I find on the balance of probabilities that they did not happen and make that finding on the basis that I prefer [NAME_3]’s evidence over that of the claimant. That said, I am prepared to accept that something happened similar to the accounts relied upon by the claimant in respect of these detriments. However, it is my finding that they occurred on different days to those stated by the claimant and I make this finding on the basis of what [NAME_3] told the tribunal.

130. In respect of the allegation the claimant makes in respect of 24 March 2021 when he says that he was in the restaurant and the customers was asking him for recommendations and, following in providing recommendations to the customers he was told by [NAME_3] in what the claimant describes as ‘a very bad way that he was wasting a lot of time recommending it to the customer’ I accept [NAME_3]’s account that he considered the claimant to be a very

Case Number: 6004441/2024 good waiter and that he had devised a bonus scheme based upon the number of Dover soles and that he did not tell the claimant not to provide recommendations.

131. In respect of the allegation said to have occurred on either 3 April 2021 or 4 March 2021 when the claimant says that he made a mistake when ordering cod namely that he ordered a grilled instead of fried whereupon he there after alleges that [NAME_3] started to yell at him in front of employees and customers of the takeaway, told of you is going to pay for the conduct of its own pocket, subsequently humiliating and ridiculing the claimant in front of others, I accept [NAME_3]’s account that this is completely untrue and that [NAME_3] accepted that from time to time mistakes will occur with regards to the ordering of food and that the restaurant had a system for accommodating this kind of error which was part and parcel of running a busy restaurant and takeaway service.

Protected disclosure three and related detriments

132. On 14 April 2021, the claimant alleges that he went to the office to ask [NAME_3] a question and observed him smoking marijuana in the office. The claimant says that he told [NAME_3] that the smoke and the smell of the marijuana bothered him and that resulted in [NAME_3] becoming aggressive and telling the claimant that if it bothered him he should not go into the office after anything.

133. The claimant clarified this allegation further. He explained to the tribunal that [NAME_3] had been smoking in his office and that smoke was going up to the customers toilet and customers were complaining. The claimant when pressed explained that he considered this to be a health and safety issue on the basis that elderly or young people may use the toilet and may find the rising smoke uncomfortable. This allegation is denied by [NAME_3] on the basis that he says that it never happened. It is my finding on the balance of probabilities that this interaction as alleged by the claimant simply did not happen. [NAME_3] made the point that he was running a busy restaurant and simply did not have the capacity or the inclination to smoke marijuana within it in the way alleged by the claimant. I accept his evidence in this regard.

134. In any event, even if it did happen in the way that the claimant alleges, I find that the claimant has failed to establish that what he was doing was disclosing information that could be considered to be protected disclosures. Applying the authorities cited above including [NAME_10] and [NAME_21], it is my finding that the claimant was not communicating information but it was simply citing his own view as to the smell of rising smoke.

135. The claimant complains of one detriment following this disclosure namely on 22 January 2022, some 10 months after the disclosure. While I note that the claimant’s case is that by this point all of the disclosures he was making had led to him being bullied on a regular and ongoing basis.

Case Number: 6004441/2024 136. The detriment the claimant relies upon here is that he says that on one occasion the restaurant he had forgotten to bring some drinks to the table and that resulted in [NAME_3] yelling at him in front of customers and telling him that he was not during his job properly. I find that this allegation is not proven on the balance of probabilities. Further, I find that the claimant has failed to establish a causal connection between any of the alleged and purported detected disclosures and this conduct. I accept [NAME_3]’s evidence that orders being forgotten by serving staff was a regular occurrence and an occupational hazard of working in a busy restaurant. Also, I accept [NAME_3]’s evidence that he considered the claimant to be a good waiter and therefore he would not have admonished him for what would have been a very minor mistake.

Protected disclosure four and related detriments

137. On 17 May 2022 the claimant says that he went to the office to ask [NAME_3] something and upon telling [NAME_3] that the smoke and smell of marijuana bothered him, [NAME_3] became aggressive and told him that if it bothered him he shouldn’t go into the office to ask for anything.

138. When cross-examined about this allegation further, the claimant simply explained that his concern was that if smoking occurred in the restaurant customers could smell smoke. [NAME_3] denies the facts of this allegation in their entirety.

139. I find on the balance of probabilities that this did not happen and I make this finding because I prefer to accept the evidence of [NAME_3] over that of the claimant. In addition, I make this same finding here as set out at paragraph 120 (above) in finding that the claimant has failed to establish that what he was doing was disclosing information that could amount to a protected disclosure.

140. In terms of further detriments, the first is one alleged to have occurred on 7 June 2022 when he says that [NAME_3] pushed him whilst under the influence of marijuana. I find this allegation unproven on the balance of probabilities. I accept the evidence of [NAME_3] and his denial therein. In any event, I find that this allegation is unconnected to any alleged protected disclosure.

141. On 28 January 2023, the claimant complains that [NAME_3] shouted at him in front of kitchen staff and embarrassing him. He says that this happened following a customer complaint. [NAME_3] denies that this allegation occurred and I make a finding that mirrors [NAME_3]’s denial. In any event, the claimant has failed to establish that the conduct complained of is related to either this or any other protected disclosure.

Protected disclosure five and related detriments

142. On 24 February 2023 the claimant complains that at the end of the evening, the restaurant was closed and the claimant complained to [NAME_3] about the sale of marijuana inside the restaurant to employees

Case Number: 6004441/2024 following which the claimant alleges that [NAME_3] became aggressive and yelling at him it was none of his business before kicking him out of the restaurant. Upon further clarification, claimant confirmed in evidence that he asked [NAME_3] why he was selling marijuana in the restaurant. [NAME_3] denies that this conversation took work took place.

143. As with the vast majority of these allegations, this is allegation that is disputed between the two men and given my findings in relation to the credibility of the claimant it is inevitable that my finding is that this is an allegation that is not made out on the balance of probabilities. In addition, I find that the claimant is not communicating a protected disclosure but rather asking a question. I note that in evidence, [NAME_3] stated that he did not kick the claimant out of the restaurant this day and that evidence was not challenged by the claimant.

144. The claimant alleges a detriment occurred on 17 March 2023 namely that [NAME_3] is said to have started yelling at him in front of customers about plates that were in the food service area. The allegation is denied by [NAME_3]. Leaving aside the fact that no protected disclosure has been found in favour of the claimant, it is nonetheless my finding that this allegation is not proven on the balance of probabilities on the basis that I prefer [NAME_3]’s evidence.

145. The claimant alleges a further detriment on 9 June 2023 when the claimant says that he observed a waitress not doing her job correctly prompting him to complain to [NAME_3] about it. He says that in response [NAME_3] started yelling at him and told him not to judge other people. Claimant makes other complaints but it is difficult for me to see how this is conduct relating to purported protected disclosures raised by the claimant and in any event, I find that the allegation is unproven on the balance of probabilities due to the claimant’s lack of credibility as a witness when compared to [NAME_3]’s credibility and standing as a reliable witness.

146. On 16 May 2024, the claimant complains of accusations made in front of staff and takeaway customers. He then complains that [NAME_3] sent him away to clean the fridge and then five minutes later confronted him aggressively and eventually physically assaulting him. He states that he was thrown out of the restaurant and received treatment at the Royal Free Hospital for several bruises caused by [NAME_3].

147. In evidence, [NAME_3] explained that he remembered this date very clearly. He said at the time he became aware that tips were being stolen and it was a matter of discussion between him and [NAME_5]. He explained that at the time the claimant was working with another waitress, to reason. He says that he took them both aside and discussed the situation with them. He recalled that [NAME_8] started crying and was apologetic. He recalls that the claimant insisted that he should not be sharing his tips with those who worked within the takeaway section of the restaurant. [NAME_3] specifically recalls that the claimant was arguing with him in front of customers.

Case Number: 6004441/2024 148. [NAME_3]’s evidence is that he directed the claimant to go downstairs to clean the refrigerator. While doing so, [NAME_3] recalls that he was showing a work colleague, [NAME_22], a pen that he had worked with him that recorded video within the restaurant. [NAME_3] says that he took the pen off the claimant and showed it to [NAME_5], and two others namely [NAME_23] and [NAME_24]. He recalls the claimant grabbed the pen, pulled [NAME_3] into the refrigerator and he was then pulled back from [NAME_3] by [NAME_22]. He then left the refrigerator and went upstairs. His next recollection is that he recalls the claimant directing ‘a tirade of abuse’ at [NAME_5] while he remains downstairs. He then recalls the claimant removing his longings and going home. He recalls the claimant saying, ‘you’re gonna see what’s going to happen’.

149. He goes on to say that that evening he received 19 messages from the claimant and [NAME_5] received 18 or relating to holiday money, suspension and whether he was being fired. [NAME_3] specifically recalls that the claimant made no mention of the fridge incident at all.

150. This led to the claimant’s suspension. During the disciplinary meeting on 3 June 2024, [NAME_3] and the claimant discussed what had occurred on 16 May 2024. In evidence, [NAME_3] said the following:

“During the disciplinary meeting, we touched base on the meeting and the claimant conceded that it would have been [NAME_22] who gave him the scratch. In the meeting, he accused me of stabbing him and I was so concerned that I was minded to call the police as I was worried and scared and what he was prepared to say. We moved pretty quickly onto the next subject. The claimant also has a recording of that meeting.”

151. I find [NAME_3]’s explanation of what happened on the day to be credible, believable, comprehensive and exonerating of his behaviour. I accept [NAME_3]’s explanation in its entirety and in so doing it is my finding that the claimant fails to establish the basis of the detriment that he alleges on the balance of probabilities. It is my express finding that it was the claimant was the agitator or protagonist behind what occurred on this day. In particular, I do not find that the claimant was physically assaulted by [NAME_3] or anybody else that it was more likely that the claimant was being restrained.

152. The claimant withdrew his allegation arising out of a complaint that he made to [NAME_3] on 8 June 2024 was a protected disclosure. When asked to explain factual events behind the headline allegation, the claimant accepted that he could not remember what he had said to [NAME_3].

153. In addition, the claimant withdrew the allegations of detriment arising from 22 June 2024 (‘the waitress, [NAME_25], falsely accused [NAME_26] of something and mistreated him in front of other staff members. She would often take marijuana from the restaurant to sell. [NAME_26] has evidence of this’), and 15 June 2024 (‘the waitress, [NAME_27], also falsely accused [NAME_26] of something in front of other staff members. She was sometimes involved in [NAME_32]’).

Case Number: 6004441/2024

154. On 29 June 2024, the claimant says that [NAME_3] reprimanded him for something that was not his fault and when he asked [NAME_3] to not treat him so aggressively and unfairly in front of customers and staff, [NAME_3] told him that if you didn’t like it he should find another job.

155. In cross-examination, the claimant said that this had nothing to do with any protected disclosures. He described it as bullying. After I explained to him that we were considering detriments arising from protected disclosures alleged, the claimant said that all of the bad treatment he received was due to his protected disclosures and everything was related and linked.

156. [NAME_3]’s position is that this incident did not happen.

157. My finding is that the claimant has failed to establish on the balance of probabilities that the incident happened as he alleges it to have done. In any event, I accept the claimant’s evidence that the treatment he complains of was unrelated to any protected disclosures. While the claimant sought to correct himself and assert that a protected disclosure was up late for the conduct he complains of here I find that the claimant meant what he said in relation to the lack of a causal connection between any of the purported protected disclosures and the detriments arising therefrom.

Automatic unfair dismissal

158. It follows that because the claimant has failed to establish any of the protected disclosures that the allegation that he was dismissed and that the principal or main reason for his dismissal was because he raised protected disclosures must fail.

Ordinary unfair dismissal

159. The claimant’s basis for alleging that he was dismissed unfairly is set out earlier in this judgment. The claimant cross-examined [NAME_3] about his dismissal. The following is the discussion between the two men that took place before the tribunal.

Claimant: [redacted]

[NAME_3]: yes but not because of it

Claimant: [redacted]

[NAME_3]: we just received a claim for £400,000 from the employment tribunal. You were not engaging with us but sent 19 to 20 emails a day regarding wages and were making a claim. The claim and the value of the claim were saying to me that you are not coming back to work. I cannot believe a waiter would make such an absurd claim and was expecting to come back. [NAME_28] and I were covering and had no indication that you are prepared to come back.

Case Number: 6004441/2024 Claimant: [redacted]

[NAME_3]: I didn’t know. But the fact that you wanted six months off and holiday and were not prepared to engage with us. He said he would not be able to attend any meeting which would have started the process of return. This factor plus the circumstances led me to believe that he would not have returned at some point.

160. In submissions, the respondent says correctly that ill-health capability is one of the fair reasons for dismissal as set out under section 98 (1) ERA 1996. Further, it is said on behalf of the respondent that despite a number of efforts to engage the claimant in a process that would have enabled the respondent to have better understood the claimant’s health with a view to obtaining a date for the claimant’s return to work, the claimant either failed or refused to engage with the respondent’s medical capability procedure. The claimant cites his ill-health as the reason why he did not engage with the medical capability procedure and explained in correspondence that he was unprepared to engage with anyone from the respondent on the basis that he had received advice from his doctor that such contact would make his anxiety and depression worse. The claimant did not provide any evidence of this advice and there was none of this advice contained within the bundle of evidence before the tribunal.

161. In fact, the claimant had provided February 2025 as a possible return date and in one email, 17 February 2025. In evidence, the claimant appeared to have chosen this date after receiving what he described as advice from ACAS that told him that he was entitled to take up to 6 months leave of absence due to sickness. My own review of the ACAS website noted that reference is made to an entitlement to receive statutory sick pay running up to a period of 26 weeks and it is my finding that this is the advice that the claimant received and not that he was entitled to take 26 weeks off sick as a matter of right. It is my finding that the claimant had predetermined this period of absence as a matter of his own personal entitlement and as a consequence, reasoned that he did not have to engage with the respondent in the way that the law expects. It is my finding that this is a case that is all fours with that of [NAME_29] (see above), namely a case of an uncooperative employee and the assessment of that employee’s capability to attend work as a consequence of sickness.

162. In my finding, it was entirely reasonable for [NAME_3] to reach the decision that he did in light of the claimant’s period of absence that had occurred, the lack of information and cooperation coming from the claimant insofar as an investigation of his health was concerned, the business consideration that [NAME_3] had in mind given the claimant’s prolonged absence and the fact that it remains the case that the claimant is unfit for work meaning that the decision [NAME_3] reached has been justified by the passing of time. The respondent took sensible and responsible steps to consult with the claimant in order to inform itself of the true medical position. The respondent attempted to ascertain this information in consultation with the claimant. However the claimant’s rigid position with regards to engagement stymied any attempts by the respondent to progress this matter.

Case Number: 6004441/2024 163. Given this, and in light of the facts presented to the respondent, I find that dismissal on the basis of capability falls within the range of reasonable responses open to the respondent. I find that the respondent followed a fair procedure before dismissing the claimant. I note that the claimant says in submissions in respect of reasonable investigation that no proper medical or occupational health report was sought before dismissal and of course that is right. However, it is my finding that the reason why the respondent did not obtain a medical or occupational health report was due to the claimant and this can be seen clearly seen from the email correspondence between the parties during the claimant’s period of absence and in particular, the claimants pointed refusal to engage.

164. I do not agree with the claimant that the respondent could reasonably have waited longer. I find that the claimant’s basis for the evaluation of a possible return in February 2025 as unreasonable and unsupported by any evidence whatsoever. In any event, no evidence had been provided to the respondent to support what the claimant was saying about a possible return then and it is noted that nowhere does the claimant say that he would have returned to work at this time simply that he considered it possible that he might return.

165. I find that the respondent’s belief in the claimant’s incapability to have been genuine and reasonable.

166. Accordingly, I find that the claimant’s claim of unfair dismissal fails.

Unlawful deductions – tips

167. The respondent produced video evidence of conversations that took place between the claimant and [NAME_8] on 11 May 2025. I have found that it is clear that the claimant is discussing tips extensively with his work colleague. In addition, there is documentary evidence in the bundle that supports the respondent’s case. For example at page 130 there is a WhatsApp message from the claimant to [NAME_3] where he says the following: ‘[NAME_3] you need to take fron [sic] me tips 1 halp [sic] lager and 1 soda water’. I found the claimant’s oral evidence in response to the evidence presented to the tribunal to be confused and inconsistent here.

168. The respondent says that the period of the tips claim coincides with the inception of its new tip policy on 11 June 2024. In response to the evidence presented to him that he had received tips, the claimant stated that he only received tips on one or two days throughout this period having previously said that he had received no tips.

169. [NAME_5] and [NAME_3] made clear that the claimant received tips throughout his employment when the respondent was open for business. I have no difficulty in accepting their evidence because it is supported by the evidence within the bundle. Accordingly, the claim of unlawful deductions from wages on the basis of unpaid tips is dismissed.

Case Number: 6004441/2024 Unlawful deductions – holiday pay

170. Both parties have not provided submissions in respect of the claimant’s claim in respect of holiday pay. It is the position that [NAME_5] was responsible for payroll within the respondent and therefore is the person best placed to explain the respondent’s position in respect of the claimant holiday pay claim. As the basis of the claimant holiday pay claim this is stated to be his full entitlement to holiday pay accrued on termination. It remains the case that the claimant relies on his annual leave entitlement and his insistent that he is entitled to receive 146 hours of leave that remain to be paid on termination.

171. [NAME_5] explained that the claimant was paid leave on the basis of average hours worked across a certain period. She explained that the respondent kept records of hours worked and average hours worked and these were used to calculate holiday entitlement and included overtime worked.

172. She explained from January to March 2024 the claimant worked an average of 40.5 hours in three months including holiday pay and this formed part of the calculations. She went on to say that by June his hours fell off and subsequently the average hour calculation fluctuated. By the time he went on sick leave he had accrued 33 hours a week. However this figure had risen to 34.5 hours when an average is taken for the period between 1 January to 15 October 2024. She pointed out that if the claimant had worked an average of 33 hours per week it would have given rise to 146 hours holiday entitlement as accrued up to 15 October 2024 but in fact he had been assessed as working an average of 34.5 hours over that period. When one took into account the hours accrued, and gave account for those hours taken as leave, he was left with 74.7 hours which is what the claimant was paid.

173. When I asked [NAME_5] why she said the claimant was wrong about his claim, she said that if the claimant had worked the whole year at 40+ hours he would have accrued 226 hours leave but due to a number of factors including sick leave and a drop off in his weekly hours worked on average his entitlement reduced and so by the time of his departure he had accrued 154 hours.

174. I accept all of [NAME_5]’s evidence with regards to holiday pay. It is my finding that the claimant has been paid holiday pay accrued and payable to him and that is entitlement to holiday pay ended on 15 October 2024. Accordingly, the claimant’s claim to holiday pay is dismissed.

Approved by: Employment Judge Forde 30 October 2025

Case Number: 6004441/2024 Judgment sent to the parties on:

21 November 2025 …………………………………… For the Tribunal:

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