Mr Andrew Sell v Victoria Park Motor Company Ltd: 1600175/2018
| Judgment Date | 13 August 2018 |
| Subject Matter | Sex Discrimination |
| Date | 13 August 2018 |
| Citation | 1600175/2018 |
| Published date | 14 July 2019 |
| Court | Employment Tribunal |
Case Number: 1600175/2018
1
EMPLOYMENT TRIBUNALS
Claimant:
Mr Andrew Sell
Respondent:
Victoria Park Motor Company Limited
Heard at:
Cardiff
On: 24 July 2018
Before:
Regional Employment Judge B J Clarke
Members
Mr W Davies
Mrs M Farley
Representation:
Claimant:
In person
Respondent:
Mr Michael Standing (counsel)
RESERVED JUDGMENT
The unanimous reserved judgment of the tribunal is that the claimant’s complaints
of unfair dismissal contrary to Sections 98 and 103A of the Employment Rights Act
1996 and victimisation contrary to Section 39(4)(c) of the Equality Act 2010 fail and
are all dismissed. He was fairly dismissed.
REASONS
The parties
1. The respondent, Victoria Park Motor Company Limited, is a car dealership in
Cardiff, which buys and sells new and used Mazda cars. It trades under the
name “Victoria Park Mazda”. It was formed in 1982 as a family business by
Tony Marshall and his wife Dianne. They retired in 2007 in the context of a
management buy-out, but Tony Marshall remains a director and he continues
to be heavily involved in the business. The principal of the dealership, and
managing director, is Gareth Jones. Its financial director was, until recently,
Allan Nicoll. Tony and Dianne Marshall’s son, Peter Marshall, is its marketing
director. Andrew Gardner is a sales manager. They all feature in this case.
Case Number: 1600175/2018
2
2. The claimant, Mr Andrew Sell, worked for the respondent as a valet; his role
was to clean cars. He initially did this on a freelance basis, but he became an
employee on 1 March 2012. Separately (and not as part of his employment),
he would do occasional work at Mr and Mrs Marshall’s home, tending their
garden and the like. He was dismissed with a payment in lieu of notice, with
effect from 8 November 2017, for the stated reason of misconduct (said to be
cleaning and repair work done on a personal car without authorisation and in
breach of company rules). At the time, he was the subject of a final written
warning for previous misconduct (said to be driving a car on the company’s
site while using a hand-held mobile phone and, when challenged, acting
abusively). This case is about the lawfulness of his dismissal.
The tribunal proceedings
3. Following a period of unsuccessful Acas early conciliation (which lasted from
14 December 2017 to 8 January 2018), the claimant presented an ET1 claim
form to the tribunal on 30 January 2018. His grounds of complaint were
expressed in brief terms:
Unfair dismissal based on the fact that other members of staff have
been treated differently.
I believe that as I have made allegations regarding sexual
harassment/inappropriate behaviour in relation to the owner’s son
I have been discriminated against.
In addition, sanctions imposed on me were by a committee which
included the owner of the company and not by the relevant
disciplinary manager, and I believe this has led to unfair
decisions/sanctions relating to my continued employment.
The reference in this short narrative to the owner is a reference to Tony
Marshall. The reference to the owner’s son is to Peter Marshall.
4. The claimant asked for the remedy of reinstatement. When identifying the
legal complaint that he was bringing, he only ticked the box at section 8.1 of
the ET1 form marked “I was unfairly dismissed”. However, he also ticked the
box at section 10.1 of the ET1 form, which indicated that his claim included
reference to a protected disclosure.
5. Regrettably, the tribunal failed to serve the ET1 claim form on the respondent
swiftly. The respondent was only sent the claim form on 4 April 2018.
6. In its ET3 response form, the respondent contended that the claimant had
been fairly dismissed. It denied that the dismissal involved any disparity of
treatment; it denied that the dismissal related in any way to allegations the
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