Claimant v Polestar Holdings Limited

The respondent conceded ordinary unfair dismissal at a later hearing because Mrs Borman decided to dismiss the claimant before the disciplinary hearing took place, as evidenced by her email on 23 November 2021 saying she wanted to go down the 'dismals [dismissal] for Gross Misconduct'.

The tribunal found that the conduct for which the claimant was dismissed was not sufficiently serious to justify summary dismissal. The claimant had made negative comments about the business and Mr Russell, but this did not amount to gross misconduct warranting dismissal without notice.

The tribunal found that the claimant's communications did not meet the criteria for protected disclosures under s43B ERA 1996. They did not disclose information in the public interest, and the respondent did not perceive them as whistleblowing disclosures. The dismissal was not for making or being perceived to have made protected disclosures.

The tribunal found that the claimant's alleged protected disclosures (in a letter on 14 December 2021 and in his grievance on 2 February 2022) did not qualify as protected disclosures. They did not disclose information showing a breach of legal obligation and were not made in the public interest. The alleged perceived disclosures were also not found to be protected.

The whistleblowing detriment claims failed because the tribunal found the claimant did not make protected disclosures and the respondent did not perceive him to have made any. The treatment complained of (access to laptop, manner at disciplinary meeting, failure to consider grievance, subject access request) was therefore not done on grounds of protected disclosure.

The tribunal found that Mr Russell's questions about retirement were for planning reasons, not because of age. The claimant was valued and respondents wanted him to stay. The decision to dismiss was made because of concerns about negative comments, not age. None of the treatment was because of the claimant's age.

The tribunal found that the respondent did not have the alleged PCPs (practice of expecting/encouraging employees to retire if partner retired, or attempting to prevent/discourage workers over 65 from working full-time). Mr Russell's questions about retirement were for planning purposes only and not directed at older workers specifically.

The tribunal found that the matters complained of (questions about retirement, speaking in sneering manner at disciplinary hearing, refusing to deal with grievance, etc) either did not occur as alleged or were not related to age. The respondent's conduct was not unwanted conduct relating to age that violated dignity or created an intimidating environment.

The alleged protected act (comment about being pushed to part-time) did not mention discrimination or the Equality Act so was not understandable as an allegation of contravention of the Equality Act. The comment in the letter of 14 December 2021 was made after the investigation and disciplinary action had already commenced. The victimisation claim in claim 2 (about overpayment claim) failed because the overpayment claim did not amount to a detriment.

The claim that proceeding with the disciplinary hearing on 14 December 2021 when the claimant was signed off sick breached the respondent's duty of care and contractual disciplinary procedure failed. The claimant had not informed the respondent he was certified unfit until the day of the hearing, so the respondent could not have been in breach.

The claim under s10 Employment Relations Act 1999 for refusal to permit the claimant to be accompanied at disciplinary and appeal hearings failed. The respondent tried to find a companion and offered Ms Dunsby, but the claimant did not accept. The claimant could not show that the respondent refused to permit him to be accompanied by someone he had chosen who fell within s10(3).

The unauthorised deductions claims in claim 2 (fees for August-December 2021 and holiday pay calculation) failed because the claimant had not accepted the new contract terms under which these amounts would have been payable. Under his original contract, the fees were not due and holiday pay was correctly calculated.

The direct age discrimination claims in claim 2 (failure to pay fees, incorrect holiday pay calculation, claiming overpayment of sick pay) failed. The treatment was not because of age - it was because the claimant had not accepted new contract terms. The overpayment claim was made appropriately in the context of litigation and did not amount to a detriment.

The victimisation claim in claim 2 (concerning the overpayment claim) failed because the overpayment claim did not amount to a detriment. It was made appropriately in the context of litigation, was measured and accurate, and was responding to an issue that had arisen rather than being vindictive because the claimant had brought claim 1.