Claimant v Davide Leone & Partners Investment Company Limited

The tribunal found that the claimant was unfairly dismissed. However, a 100% Polkey reduction was applied on the basis that he would have been fairly dismissed in any event due to prolonged absence from work with no foreseeable return. The basic award was reduced by 50% under s.122(2) ERA due to the claimant's conduct in covertly recording colleagues.

The tribunal concluded that the claimant was not dismissed because of protected disclosures. The dismissal was for capability reasons due to long-term absence, not because he had made whistleblowing disclosures.

The tribunal found that the claimant's dismissal was not an automatic unfair dismissal under s.103A ERA. The reason for dismissal was capability, not the making of protected disclosures.

The tribunal found that the claimant had not been subjected to detriments on the grounds of making protected disclosures under s.47B ERA or health and safety disclosures under s.44(1)(c) ERA. The tribunal was not satisfied that the alleged detriments were materially influenced by any protected acts.

The tribunal found no evidence of direct race discrimination. The claimant's ethnicity (Italian) and claims regarding Jewish ancestry were not found to have materially influenced any treatment he received.

The tribunal found no direct sex discrimination against the claimant. Although misogynistic language was used by Mr Leone regarding third parties, this did not amount to discrimination against the claimant himself.

The tribunal found that the claimant did have a disability from 9 May 2022 (acknowledged by respondent from 2 May 2023), but no direct disability discrimination occurred. The tribunal found the dismissal and other treatment were not because of his disability.

The tribunal found that the dismissal arose from long-term absence, which did arise from disability, but that the dismissal was a proportionate means of achieving a legitimate aim (running an effective business with only 15 staff and no realistic prospect of return).

The tribunal found that many of the PCPs relied upon did not exist, and where they did, the proposed adjustments were not reasonable or would not have alleviated the disadvantage. The tribunal noted that many proposed adjustments were unrealistic or related to conduct of which the respondent was unaware (i.e. the content of covert recordings).

The tribunal found that whilst Mr Leone made inappropriate comments, these did not amount to harassment related to race against the claimant. The comments were not directed at the claimant personally and did not violate his dignity or create an intimidating environment for him in the legal sense required.

The tribunal found that whilst Mr Leone made misogynistic comments about third parties (particularly Ms Thesleff), these did not amount to harassment related to sex against the claimant. The claimant was not the target and the legal test for harassment was not met.

The tribunal found no harassment related to religion or belief. The claimant's claims regarding Jewish ancestry were found to be a late addition to the case and not substantiated.

The tribunal found no harassment related to sexual orientation. Comments made by Mr Leone about third parties did not amount to harassment of the claimant.

The tribunal found no harassment related to disability. The respondents' handling of the claimant's absence and occupational health process did not amount to harassment.

The tribunal found that certain documents (grievance, further information, grievance appeal, pre-action letter) contained protected acts, but that the alleged detriments were not done because of those protected acts. The dismissal was for capability reasons and other alleged detriments either predated the protected acts or were not materially influenced by them.