R Moon v Slater & Gordon UK Ltd

A complaint of unlawful deduction from wages based on bonus requires an identified and ascertainable sum which is payable but has not been paid. A challenge to the rationality or propriety of an employer’s exercise of contractual bonus discretion is, instead, in substance a contractual damages claim and falls outside the statutory wages jurisdiction.

For disability harassment under Equality Act 2010, the tribunal must consider the claimant’s perception, all the circumstances, and whether it was objectively reasonable for the conduct to have the alleged effect. The reason for dismissal remains a factual question. A tribunal may look beyond an innocent decision-maker where manipulation is established, but may find redundancy to be the true reason where the decision-maker acted independently.

The Claimant appealed from the Cardiff Employment Tribunal’s decision sent on 21 April 2021. The Tribunal rejected his claims for unlawful deduction from wages and disability-related harassment. It found that he had been unfairly dismissed by reason of redundancy only because he had not been given a right of appeal.

The appeal challenged the treatment of discretionary bonus claims, the harassment conclusion concerning a telephone call of 16 February 2018, and the finding that redundancy was the reason for dismissal. The Respondent cross-appealed on the wages jurisdiction and on hypothetical observations concerning harassment.

The central issues were whether the bonus claims concerned recoverable wages, whether the Tribunal had correctly applied the statutory harassment inquiry, and whether it had identified the true reason for dismissal.

1. The Claimant’s appeal was dismissed. The Respondent’s cross-appeal succeeded on its first two grounds, but this made no practical difference and no consequential order followed.

2. The Tribunal had erred in approaching the 2017 bonus claim principally as a contractual question without properly addressing the definition of wages in Employment Rights Act 1996, section 27(1). That error was immaterial. Applying Coors Brewery v Adcock & others, [2007] ICR 983, an unlawful-deduction claim requires a specific, ascertainable sum payable to the worker. The Claimant’s case was that the employer had exercised a discretionary bonus power irrationally or capriciously. It did not identify a bonus which had crystallised into a sum due and unpaid. The Tribunal could not quantify the supposed proper exercise of that discretion under the wages jurisdiction.

3. The 2018 claim also failed. At termination the Claimant was not eligible for payment under the applicable contractual condition, and no discretion had then been exercised to produce a payable sum. The Tribunal had not found that bonus terms failed to transfer under TUPE; it found that the 2015 terms, including the discretionary bonus provision, continued to apply.

4. On harassment, the Tribunal correctly applied section 26 of the Equality Act 2010. It accepted that the Claimant perceived the comments about insubordination and communications as violating his dignity. It was nevertheless entitled, in the circumstances of the call, to find that it was not objectively reasonable for the conduct to have that effect. Its conclusion was neither legally erroneous nor perverse.

5. On unfair dismissal, the Tribunal had considered both whether a redundancy situation existed and whether it was the reason or principal reason for dismissal. It was entitled to find that the consultation manager independently made the ultimate decision and had not been manipulated. The Claimant’s absences, grievances and claims did not displace redundancy as the true reason.

• Employment Appeal Tribunal: the Claimant’s appeal was dismissed. The Respondent’s cross-appeal was allowed on grounds 1 and 2 only: [2024] EAT 144.
• Employment Tribunal (Cardiff): the unlawful-deduction and harassment claims were rejected. The dismissal was found unfair only because no appeal against redundancy dismissal had been provided.