Mr P McNabb v Denholm UK Logistics Ltd: 2401061/2021
| Judgment Date | 04 February 2022 |
| Subject Matter | Unfair Dismissal |
| Date | 04 February 2022 |
| Citation | 2401061/2021 |
| Published date | 04 March 2022 |
| Court | Employment Tribunal |
Case No. 2401061/2021
1
EMPLOYMENT TRIBUNALS
Claimant:
Mr Paul McNabb
Respondent:
Denholm UK Logistics Limited
HELD AT:
Liverpool (CVP)
ON:
20, 21 January & 4
February 2022 (in
chambers)
BEFORE:
Employment Judge Shotter
REPRESENTATION:
Claimant:
Respondent:
Mr D Black (Counsel)
Ms K Graydon (Solicitor)
The JUDGMENT of the Tribunal is:
1. The claim for holiday pay brought under the Wages Act 1986 is dismissed on
withdrawal..
2. The claimant was not unfairly dismissed and his claim for unfair dismissal is
not well-founded and is dismissed.
3. The claimant was not wrongfully dismissed, he was in repudiatory breach of
contract and his claim for notice pay is dismissed.
REASONS
Preamble
1. In a claim form received on the 14 January 2021 following ACAS Early
Conciliation that took place on 21 December 2021 the claimant, who was employed
has brought complaints of unfair dismissal, holiday pay and wrongful dismissal. The
holiday pay claim was not proceeded with and is dismissed.
Case No. 2401061/2021
2
Evidence
2. I heard evidence from the claimant on his own behalf, who was not found to
have given credible evidence on a number of matters. I also heard from John
Graves, a previous employee of the respondent who had worked with the claimant
and gave evidence on his behalf. The claimant also relied on the witness evidence of
James Garrett, Craig Hughes, Paul Maloney, Emma Stanton, Lee Pilkington, Adrian
Gillen and Jamie Fox who all provided written statements with a date range between
22 October 2020 to 30 January 2021. None of the statements were in the required
format; they were unsigned emails and there was no statement of truth. The
witnesses did not give oral evidence despite, for example, Mr Gillen stating “I’m
willing to stand up in court if needed.” Their evidence is disputed by the respondent,
and as the witnesses gave no oral evidence under oath today, the veracity of their
evidence cannot be explored under cross-examination. No weight was given to the
claimant’s witnesses’ evidence, apart from John Graves who provided the email sent
on 22 October 2020 in addition to his formal witness statement prepared by the
claimant’s lawyers.
3. In the bundle the claimant produced a photograph taken on the 10 November
2020 at 00.54 showing 5/6 men who were not social distancing as evidence that the
respondent did not take its own Covid-19 rules seriously and there were many
breaches. I took the view that all the photograph showed was 5-men working
together in a small space, and there was no evidence concerning how this state of
affairs came about on that day and whether or not they were knowingly breaching
the respondent’s Covid-19 rules. It is also notable that the photograph was taken
after the effective date of termination and it was not evidence before the dismissing
officer, Andrew Sankey, and appeal officer, Andrew Vaughton. I took the view that
this evidence was an attempt at deflecting the claimant’s own misconduct.
4. On behalf of the respondent I heard from Andrew Sankey, site manager for
Port Warrington depot and the dismissing officer, and Andrew Vaughton, head of
warehousing and the appeal officer. When it came to their evidence I found it to be
more credible and believable than that given by the claimant when it came to the
conflicts, on the balance of probabilities, for the reasons stated below.
.
Agreed issues
5. The issues were agreed between the parties, the claimant no longer
proceedings with any holiday pay claim, as follows:
5.1 What was the principal reason for dismissal and was it a potentially fair one in
accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“the
ERA”)?
1.1.1 The respondent genuinely believe the claimant had committed
misconduct; was the Claimant dismissed for breaching covid-
19 rules or was the Respondent looking for a way to get rid of
the Claimant?
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