Mr K Cook v Gentoo Group Ltd: 2502422/2019

CourtEmployment Tribunal
Judgment Date06 Apr 2021
Citation2502422/2019
SubjectUnfair Dismissal
Publication Date23 Apr 2021
Case Number: 2502422/2019(V)
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August 2020
EMPLOYMENT TRIBUNALS
Claimant: Mr K Cook
Respondents: Gentoo Group Limited
Heard: Remotely (by video link) On: 8, 9, 10, 11 and 12 March 2021
(12 March 2021 in Chambers)
Before: Employment Judge S Shore
NLM Mr R Dobson
NLM Mr P Chapman
Appearances
For the claimant: Mr R Gibson, Solicitor
For the respondent: Mr T Sadiq, Counsel
RESERVED JUDGMENT ON LIABILITY
The unanimous decision of the Tribunal is that:
1. The claimant’s claim of unfair dismissal (contrary to section 94 of the Employment
Rights Act 1996) was well-founded. The principal reason for his dismissal was
redundancy. No basic award is therefore payable to the claimant, as he was paid
an enhanced redundancy payment by the respondent.
2. Following the guidance in the case of Polkey, we find that there was a 100%
chance that the claimant would have been fairly dismissed by 6 June 2020, which
would have taken his service beyond his 55th birthday and triggered no loss of
enhancement to his pension.
3. We find that there were three matters that we considered to constitute
contributory conduct on the part of the claimant and which should reduce the
compensatory award made in his favour:
3.1. The claimant attempted to delay the consultation process, which we
find should reduce his compensatory award by 15%;
3.2. The claimant’s conduct prior to his dismissal contributed to his
dismissal by a factor of 25%;
3.3. There should be a 50% reduction in the compensatory award because
the claimant failed to report a regulatory failure at the end of quarter 3
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August 2020
(Q3) of the 2018/2019 financial year, which could have led to his
dismissal (under the principle in W Devis & Sons Ltd v Atkins); so
3.4. The compensatory award made to the claimant should be reduced by
a total of 90%.
4. The claimant’s claim of automatic unfair dismissal for the reason or principal
reason that he made a protected disclosure contrary to section 103A of the
Employment Rights Act 1996 was not well founded. We find that the claimant
made no protected disclosures.
5. The claimant’s claims that he was subjected to detriment short of dismissal were
not well founded. We find that the claimant made no protected disclosures.
6. The claimant’s claim of age discrimination was not well founded and fails.
7. Directions will be sent under separate cover concerning the remedy hearing in
this case.
REASONS
Introduction
1. The claimant was latterly employed as Head of Compliance (Property Services) by
the respondent for a continuous period that included a TUPE transfer, from 1
March 1992 until 16 May 2019, which was the effective date of termination of his
employment for the stated reason of redundancy. The claimant started early
conciliation with ACAS on 23 July 2019 and obtained a conciliation certificate on 6
August 2019. The claimant’s ET1 was presented on 7 August 2019. The
respondent is a social housing landlord responsible for approximately 30,000
homes. It has approximately 1,100 employees.
2. The claimant presented claims of:
2.1. Unfair dismissal (contrary to section 94 of the Employment Rights Act
2.2. Automatic unfair dismissal for the reason or principal reason that he
made a protected disclosure contrary to section 103A of the
2.3. Detriment on the ground that he had made protected disclosures
specifically that the respondent:
2.3.1. Directed unfair criticism at the claimant in a Senior
Management Team (SMT) meeting on 4 March 2019;
2.3.2. Directed the claimant not to raise certain issues of
compliance immediately following the meeting on 4 March
2019;
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August 2020
2.3.3. Had, on or before 2 May 2019, proposed to the respondent’s
Appointments and Remuneration Committee that the
claimant’s redundancy be approved; and
2.3.4. Rejected the claimant’s appeal against dismissal on 28 June
2019 and made unfair criticisms of the claimant in the appeal
rejection letter.
2.4. Direct age discrimination (contrary to section 13 of the Equality Act
3. From the joint bundle, we note that the claims were case managed by Employment
Judge Aspden on two occasions:
3.1. On 29 October 2019, a telephone preliminary hearing was held that
made case management orders which were sent to the parties on 30
July 2019. The case was listed for a hearing on 14 to 20 July 2020
inclusive and further case management orders were made, including
an order that this hearing be limited to liability, Polkey, and contributory
fault. A list of issues was agreed.
3.2. On what should have been the first day of the final hearing, 14 July
2020, the final hearing was converted to a telephone preliminary
hearing because of the pandemic. Witness statements had been
exchanged, but the claimant sought and was granted permission to file
an additional witness statement to rebut matters referred to in the
respondent’s witness statements. The order was sent to the parties on
15 July 2020.
Issues
4. The case management order of EJ Aspden dated 29 October 2019 set out the
following issues:
Whether the claimant made a protected disclosure
1. On 10 January 2019, 8 February 2019, 4 March 2019 and/or 16 May 2019, did
the claimant disclose information that he reasonably believed tended to show that
the respondent had failed, was failing or was likely to fail to comply with a legal
obligation to which it was subject and/or that the health and safety of individuals
had been, was being or was likely to have been endangered?
2. If so, did the claimant reasonably believe it was in the public interest to make the
disclosure?
Unfair dismissal
3. If the claimant made one or more protected disclosures, was that the principal
reason for dismissal?
4. If not, was the principal reason for the claimant’s dismissal either:

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