Mr S N Andrabi v Gerry’s Offshore Incorporations Ltd: 3202426/2018
| Judgment Date | 16 April 2021 |
| Citation | 3202426/2018 |
| Published date | 28 April 2021 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case Number: 3202426/2018 V
1
EMPLOYMENT TRIBUNALS
Claimant: Mr S N Andrabi
Respondent: Gerry’s Offshore Incorporations Limited
Heard at: East London Hearing Centre (by Cloud Video Platform)
On: 9, 10, 11 and 12 March 2021 (with the parties); 15 March 2021
(in chambers)
Before: Employment Judge Gardiner
Members: Mr P Lowe
Mr M Rowe
Representation
Claimant: Mr A Ohringer (Counsel)
Respondent: Mr J Arnold (Counsel)
JUDGMENT
The judgment of the Tribunal is that:-
1. The Tribunal does not have jurisdiction to determine the Claimant’s complaint of
detriment for making protected disclosures contrary to Section 47B Employment
Rights Act 1996, because it was issued outside the statutory time limits. In any
event, the Tribunal concludes that this complaint is not well founded.
Accordingly, this complaint is dismissed.
2. The Claimant’s complaint of automatically unfair dismissal under Section 103A
Employment Rights Act 1996 on the ground that the reason was that he had
made protected disclosures is not well founded and accordingly is dismissed.
3. The Claimant’s complaint of ordinary unfair dismissal under Section 98
Employment Rights Act 1996 is well founded and succeeds.
4. The Claimant is entitled to a sum equivalent to four weeks pay under Section 38
Employment Act 2002 for failing to provide the Claimant with an up to date
Case Number: 3202426/2018 V
2
statement of employment particulars, contrary to Sections 1 and 4 Employment
Rights Act 1996.
5. A Remedy Hearing will be listed to consider the Remedy to which the Claimant is
entitled, with a time estimate of 1 day.
REASONS
1. Mr Andrabi was employed by Gerry’s Offshore Incorporations Limited from January
2015 until his employment ended in mid-2018. He brings a claim for unfair dismissal in
relation to the circumstances in which his employment ended. He also alleges he
suffered pre-dismissal detriments for making protected disclosures; and brings a claim
for automatic unfair dismissal on the basis that the principal reason why his
employment ended was because of the same alleged protected disclosures. He also
seeks a remedy for the alleged failure to provide him with a statement of employment
particulars.
2. All his claims are disputed. The Respondent disputes it dismissed the Claimant. It
alleges he resigned; and that the resignation was not a constructive dismissal (as the
Claimant argues in the alternative). It denies both ordinary and automatic unfair
dismissal. It argues that the alleged disclosures do not meet the statutory requirements
to amount to protected disclosures; and did not cause any detriment or dismissal. If
there was a dismissal, then the Respondent contends the Claimant was dismissed by
reason of redundancy or alternatively for some other substantial reason. It contends it
did provide the Claimant with a statement of employment particulars.
3. The Final Hearing took place over four days, in a remote hearing held over the Cloud
Video Platform. There was an agreed electronic bundle of documents, to which both
parties referred in the course of the evidence. The Claimant had prepared a witness
statement and was cross examined on its contents. Evidence was given on behalf of
the Respondent by Mr Arshad Wali Muhammad (“Arshad”), and by Ms Fizzah Masood.
Both were cross examined. A witness statement had been exchanged by Mr Afzal Wali
Muhammad (“Afzal”) but the Respondent did not call him to give evidence. On
instructions, Mr Arnold (counsel for the Respondent) told the Tribunal at the start of the
hearing that Afzal was too unwell to give evidence, having recently been discharged
from hospital for treatment for high blood pressure. Mr Arnold subsequently produced
a medical note confirming Afzal had been hospitalised with this condition. It did not
specifically deal with Afzal’s fitness to give evidence.
4. When the Tribunal was first informed it was unlikely that Afzal would be well enough to
give evidence, Mr Arnold indicated he would not be seeking a postponement. Mr
Ohringer, counsel for the Claimant, said that if the Claimant was minded to seek a
postponement, his client would not oppose such a course of action. Mr Arnold
indicated his clients wanted the matter concluded. In these circumstances, Mr Ohringer
asked the Tribunal to draw adverse inferences from the manner in which Afzal’s
absence was explained, and from the Respondent’s willingness to proceed in his
Case Number: 3202426/2018 V
3
absence. Afzal’s health had been the reason why the Final Hearing had previously
been postponed. This is a matter to which we will return.
5. At the conclusion of the case, both counsel exchanged written closing submissions
(including in the case of Respondent’s counsel, a separate statement of legal
principles), which they amplified orally, as well as commenting on each other’s
submissions. There was insufficient time for the Tribunal to deliberate within the four
days allocated for the Final Hearing. As a result, Judgment was reserved.
Findings of fact
6. The Respondent is a UK registered company. It is part of a group of companies with
more than 12 active businesses, known as Gerry’s Group. It is owned in equal shares
by five brothers, of which Afzal and Arshad are two. These are the two brothers most
closely involved with the matters to which this claim relates. Both are Pakistani
nationals and are based in Pakistan, where Gerry’s Group has its headquarters. Afzal
is the Chairman of the Group and oversees all the divisions within the Group. As Afzal
says in his witness statement, he would be involved in all strategic decisions for the
Group, and guides the other directors.
7. The two principal activities undertaken by the Respondent in the UK were as follows.
Firstly, the Respondent operated several Costa Coffee franchises. Secondly, the
Respondent issued visas on behalf of the Pakistan High Commission and its Consular
offices in London, Bradford, Birmingham and Manchester. From about 2013 onwards,
it did so under a contract with the Pakistan High Commission.
8. The Claimant is also a Pakistani national. From 2003 to 2014, he was employed in
various positions in Pakistan by a Pakistan registered company within the Gerry’s
Group. This company was called Gerry’s International Pvt. Limited. The Claimant’s role
was to manage its airline division from his base in Karachi.
9. The Respondent’s visa issuing operations in the UK had been started by an individual
named Muhammad Aamir Taj (“Mr Taj”). Mr Taj is an important individual in relation to
the events to which this claim relates. Despite that, he has not been called to give
evidence and the reason for this has not been specifically explained. Latterly (and
apparently currently), his role was that of Vice-President (Projects). However, for much
of the Claimant’s employment, Mr Taj was apparently not engaged by the Respondent
under an employment contract. Rather he performed services for the Respondent in
return for regular remuneration. The focus of his role appeared to be on liaison
between the Respondent and the Pakistan High Commission in the UK to assist with
the visa issuing business.
10. The Tribunal was told that by 2014, the UK visa issuing business was not operating
effectively. At the time, the Claimant had the role of General Manager for Gerry’s
International Pvt. Limited in Pakistan, where he reported to Arshad. Arshad also had
responsibility for the visa issuing business operated by the Respondent in the UK.
Impressed by the Claimant’s performance in his role in Pakistan, Arshad persuaded
To continue reading
Request your trial