“Keep the Preliminary Hearing on15 March 2021 . Both claims to be considered. Stay order for presenting ET3 until the hearing. Order to be made at that hearing for ET3 to be filed and served in respect of all claims.”
“314. The claimant was dismissed due to a total breakdown in the relationship between the claimant and the respondent…Through his behaviour, the claimant had made the working relationship untenable.”; “315. In the circumstances, we find that there had been a fundamental and irretrievable breakdown in working relationships and in trust and confidence. We find that the claimant was dismissed for some other substantial reason, and that the respondent has proved a fair reason for dismissal; “…322. We also find however that there was a 100% chance that the claimant would have been dismissed had a fair procedure been followed. The claimant was unrepenting in his views about Ms Muthana and Mr Peplow, and about the way in which he perceived he had been treated. He maintained those views in the Tribunal hearing and would not, in our view, have departed from them at a formal dismissal meeting.”; “323. We also find that the claimant’s conduct, in making the accusations that he did about his managers and others in the respondent’s organisation, and his behaviour towards Mr Peplow and Ms Muthana over a lengthy period of time was culpable and blameworthy. He showed a total lack of appreciation and recognition for all of the steps that were taken to support him.”; “324. This behaviour directly caused the respondent to dismiss him. We therefore make a 100% finding of contributory conduct…”
“...What I can note is that the appeal related to a decision concerning two tribunal claims, one begun in 2020 and one begun in 2021. At that time the EAT’s Rules of Procedure required that the documents to be served on the EAT in order to institute an appeal from a judgment included “a copy of any claim and response in the proceedings before the employment tribunal or an explanation as to why either is not included. It appears that, in this case, within the time limit for instituting an appeal, of16 February 2023 , the Appellant provided to the EAT the grounds of resistance document relating to both claims, but no ET3 forms, and no explanation for why none were provided. Upon this being raised by the EAT’s administration, the Appellant then, on18 February 2023 (two days after the time limit expired), provided the ET3 form for the 2020 claim, and the explanation that there was no separate ET3 form for the 2021 claim. I note that the Registrar refused to extend time entirely, but I partially allowed the appeal from her order, refusing an extension of time for the appeal in respect of the 2020 claim, but granting an extension of time in respect of the 2021 claim. I can infer from this that I considered that, for the purposes of what I had to decide ,there was a material difference between the first claim, in respect of which there was an ET3 form, which was only provided out of time, and the second claim, in respect of which there was no separate ET3 form, and this fact was subsequently explained. I have had my attention drawn to the minute of a subsequent hearing in the employment tribunal on23 January 2024 before REJ Swann. Reference is made there to the hearing before me, including to an affidavit of the claimant, that was put before REJ Swann, which, as described there, gave an account of things said at the hearing before me. I have not seen that affidavit. But, in any event, I am not at this distance in time able to comment on the account described there.”
“This is mainly and predominantly in light of decision being made without consideration of interim application and affidavit that HHJ Auerbach assessed and granted time extension on. HHJ Auerbach made annotation i [sic] the case file, to allow sieving judge to review those documents, however, this appears to be missed.” documents, however, this appears to be missed.”
“The Employment Judge considering the application under Rule 72(1) shall not consider any correspondence which post-dates the reconsideration application.”
“I considered that it was arguable that the ET had failed to explain in respect of (1) why a total deduction should apply to both the basic and compensatory award elements and (2) why when it recorded procedural failings there was a 100% prospect of dismissal.” (2) The 2024 Appeal – Grounds 1 and 2. The learned Judge said: “…these deal with a number of arguments but all arise out of one point: this is whether the EJ should have considered the fact that an ET3 had not been presented in accordance with the 2013 ET rules. The ET Judge approached the reconsideration solely on the basis of the original application made in 2022. It was known by the stage of this decision that there had been no ET3 for the second claim. It seemed to me that it was reasonably arguable that, as the presentation of an ET3 is a prerequisite condition for defending a claim, that this should have been approached by the judge as part of the reconsideration decision.”
“ET did not have jurisdiction (legal authority) to hear my case or make a decision to ignore the Strike out application.”
“The Tribunal is respectfully referred to the response dated20 July 2020 and amended5 November 2020 filed in claim no 2601914/2020 (the “Original Response”), which set out the background of the Claimant’s employment with the Respondent up to the date of2 June 2020 and responded to the Claimant’s claims for discrimination which formed the basis of that claim. The Tribunal is requested to read this document alongside the Original Response.”
“A response form may include the response to more than one claim if the claims give rise to common or related issues of fact or law or if it is otherwise reasonable for the responses to be made on a single response form.”
“If the tribunal staff reject a claim under Rule 10 or an employment judge rejects it under Rule 12, the claimant may seek reconsideration on the basis that either the decision to reject was wrong or the notified defect can be rectified: see Rule 13(1). But if no such rejection occurs it is not in my view open to a respondent to argue at a later stage that the claim should have been rejected. The respondent's remedy is to raise any points about non-compliance with the Rules in their form ET3, or in appropriate cases at a later stage, and to seek dismissal of the claim under Rule 27 or apply for it to be struck out under Rule 37.”
“…the respondent shall file with the Tribunal a single response which shall incorporate an amended response in case 2600301/2020 and a response in case 2601914/2021.”
“…such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”
“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”
“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.”
“It is true that paragraph 56 is pithy, and that did cause me some initial concern. However, on a fair and careful reading it is evident that the ET had very much in mind the principles set out in Steen. Each of the four questions is answered in the paragraph, and the separate considerations which are required to be given as between the basic and compensatory awards correctly set out. I agree with Mr Walters that the case law is such that similar deductions from both heads of award is the norm, and it would normally be only when there is a divergence that a detailed explanation would be expected. Paragraph 56 cannot be read in isolation. It encapsulates the ET’s detailed reasons for reaching the conclusions that it did. It cannot be said that the reasons for the separate decisions that each award should be reduced by 100% cannot be gleaned from the ET’s reasons read as a whole. For that reasons[sic], grounds 1 and 5 also fail.”
“17. It needs to be emphasised that a finding that a claimant is 100% responsible for his dismissal and that it would be just and equitable to reduce compensation by that amount, and a finding that for the same reasons presumably it would be just and equitable to reduce the amount of the basic award to nil, is an unusual finding. It is however a permissible finding: see the decision of the Employment Appeal Tribunal in Lemonious v Church Comrs (unreported), a judgment handed down on27 March 2013 by a panel presided over by Langstaff J, President.”
“It is therefore all too often an error of law that a tribunal simply states its conclusion as to contributory fault and the appropriate deduction for it without dealing with the four matters which we have set out earlier in this decision. We add for the comfort of Tribunals that there is no need to address these matters at any greater length than is necessary to convey the essential reasoning. Of its nature a particular percentage by which to reduce compensation, if that is how the tribunal seeks to address the word “proportion” in section 123(6) , or by a particular fraction, if that is how the tribunal wishes to address it, is not susceptible to precise calculation, but the factors which help to establish a particular percentage should be, even if briefly, identified. As the cases we have cited show, this is all the more so where compensation is entirely extinguished by that which the tribunal concludes a Claimant actually did which was blameworthy and which made it in its view just and equitable to reduce both the basic award under section 122(2) and separately the compensatory award under section 123(6).”
“We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity’s and brevity’s sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an industrial tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well-established by the decisions of the Court of Appeal in Retarded Children’s Aid Society Ltd. v. Day [1978] I.C.R. 437 and in the recent decision in Varndell v. Kearney & Trecker Marwin Ltd. [1983] I.C.R. 683.”
“…if that course is to be taken, it is necessary clearly to explain why both deductions are being made and what is the basis for each. Importantly, it is also necessary to avoid any element of double-counting of the same factors in a way which is unfairly detrimental to the Claimant (Rao; Granchester Construction (Eastern) Limited v. Attrill EAT 0327/12; and Dee v. Suffolk County Council EAT 0180/18).”
“…The question is not whether if Dr Colville had conducted a disciplinary hearing, that hearing would have been fair, but whether if there had been a fair disciplinary hearing the result would still have been a dismissal.”
“This exchange was, in our view, typical of the way in which the claimant responded to Ms Muthana, for whom he appeared to have no respect or consideration. He did not appear to recognise or accept that her role was to manage. On more than one occasion he challenged her authority publicly and was critical of her. This caused the relationship between the claimant and Ms Muthana to become very strained and Ms Muthana found it very difficult to manage him.” (3) At paragraph 141 of the ET Decision, the ET found that on14 March 2019 the Appellant made an allegation to Mr Heusler, the factory manager that he was being intimidated by Mr Allcock, who was employed as a Production Manager, and other managers. He produced no evidence in support of this allegation. He also wrote to Mr Heusler on12 March 2019 stating his belief that “his relationships with the head of department and his line manager [Ms Muthana] were damaged beyond repair.” (4) At paragraph 154-155 of the ET Decision, in relation to the consideration by Mr Peplow of a PIP grievance lodged by the Appellant against Ms Muthana, the ET found that the approach taken by Mr Peplow was “entirely reasonable” and the allegation “is a further example of the claimant being unwilling to accept management decisions or put things behind him.”; (5) At paragraph 167 of the ET Decision, in relation to the Appellant’s performance review for 2019 conducted by Ms Muthana, the ET recorded that Ms Muthana was extremely anxious going into this meeting. It was therefore agreed that she would be accompanied by a member of the Respondent’s HR team, and that the Appellant would have his union representative present. It concluded: “The fact that third parties were present during what was essentially a normal management meeting was in our view a strong indication that the relationship between Ms Muthana and the claimant had broken down. Ms Muthana was scared of the claimant given his behaviour towards her in the past.” (6) Paragraphs 176-179 of the ET Decision referred to a meeting with the Appellant and senior management on6 May 2020 which was intended to assist the Appellant to improve his performance. The meeting lasted an hour at the end of which the Appellant stated: “We’re going nowhere at the moment.”
“This behaviour directly caused the respondent to dismiss him. We therefore make a 100% finding of contributory conduct.”
“123. We found Ms Muthana and Mr Peplow to be credible and honest witnesses, who treated the claimant with patience, respect and dignity. We were particularly impressed by what we heard during the covert recordings made by the claimant, when they did not know that they were being recorded and thought that they were alone with the claimant. Both of them came across during those conversations as professional, calm and reasonable, in the face of unreasonable behaviour (and, in the case of Mr Peplow, allegations of harassment). 124. Where there is a conflict of evidence between the claimant and Ms Muthana and Mr Peplow we prefer their evidence to that of the claimant. It was clear to us that the claimant holds very strong views which he would not move from, and which in our view affected his recollection and interpretation of events. He was not willing to accept that there could be another version or interpretation of events than his own.”
“… the case law is such that similar deductions from both heads of award is the norm, and it would normally be only when there is a divergence that a detailed explanation would be expected. Paragraph 56 cannot be read in isolation. It encapsulates the ET’s detailed reasons for reaching the conclusions that it did. It cannot be said that the reasons for the separate decisions that each award should be reduced by 100% cannot be gleaned from the ET’s reasons read as a whole.”