Claimant v Make Waves Swim School Ltd

The tribunal found the claimant was dismissed for misconduct (poaching customers and promoting a rival business). However, there was no reasonable evidence of poaching; the investigation was inadequate; and clause 14 of the contract prohibiting other work was unenforceable under s.27A ERA (zero hours exclusivity term). The implied duty of fidelity, given the claimant's zero hours status, low pay, and the fact she no longer taught swimming, did not prohibit her involvement in another swim school. Dismissal fell outside the band of reasonable responses.

The claim related to an allegedly aggressive email sent on 3 January 2024. The tribunal found the reason for the email was to enforce a policy requiring admin work to be done in the office, not the claimant's disability. The burden of proof did not shift. The claim was brought out of time (over a month late) and the tribunal declined to extend time on just and equitable grounds given the lack of merit.

The claimant alleged the respondent should have allowed her to continue doing admin in the soft play area rather than the office, to avoid stress and anxiety. The tribunal found the respondent had no actual or constructive knowledge of the disadvantage caused by working in the office. The claimant never mentioned difficulties with the office environment in welfare meetings or in her response to the instruction. The claim was also out of time and the tribunal declined to extend on just and equitable grounds.