Employment Judge HallenIn person for claimantDate 14 September 2023
JUDGMENT
The claim for unfair dismissal is unfounded and is dismissed.
REASONS
Issues
[1]The Claimant was an Installation engineer employed by the Respondent between 1 August 2017 and 30 January 2023, at which time he was dismissed by reason of gross misconduct.[2]In his Claim Form received by the Tribunal on 6 March 2023, he claimed that he was unfairly dismissed by the Respondent. The Respondent in its Response Form disputed that the Claimant was unfairly dismissed and cited that the dismissal was by reason of gross misconduct and that it was a fair dismissal.[3]The issues for the Tribunal were firstly to determine what the reason for dismissal was and whether it was by reason of conduct as asserted by the Respondent. Thereafter, the Tribunal had to ascertain whether the Respondent acted reasonably in all the circumstances in dismissing the Claimant and in particular: -(i) Did the Respondent believe that the Claimant had committed the acts of conduct relied on;(ii) Had the Respondent reasonable grounds for that belief;(iii) Had the Respondent conducted such investigation as was reasonable in all the circumstances of the case;(iv) Was dismissal within the range of reasonable responses open to a reasonable employer?[4]The Tribunal had an agreed bundle of documents in front of it made up of 156 pages. The Respondent also called the dismissing officer, Ms Tracey Westwood, HR Manager and Mr Craig Jones, a Director of the Respondent to give evidence. Both of these witnesses prepared written witness statements and were subject to cross examination. The Claimant attended in person having presented a short witness statement himself and he was also subject to cross examination. On the first day allocated for the hearing, the Claimant did not produce a written witness statement as was directed by the Tribunal in a case management order made to assist the parties to prepare for this hearing. With the agreement of the Respondent, this was prepared and exchanged by 3 pm on 7 September so that the hearing could commence on 8 September to consider the liability aspect of the case only.
Facts
[5]The Claimant was employed as an Installation Engineer by the Respondent from 1 August 2017 to 30 January 2023. On 30 January 2023, he was dismissed for gross misconduct. This was the effective date of termination. The Respondent at the time had six employees. One HR Manager, Ms Westwood and five installation engineers including Mr Jones who is also a director of the company. The Respondent provides mainly security installation services for commercial clients.[6]In July 2022, the Respondent had a number of concerns with the Claimant’s conduct due to several absences he had had, his general attitude towards his work and management skills. These issues related to the Claimant exhibiting rude and objectionable behaviour towards the Respondent’s Director, Mr Jones on 21 June 2022. In addition, the Claimant had failed to put out a satisfactory standard of work by failing to carry out some of his duties or forgetting to take equipment needed for his job, causing a disruption in the office as other staff had to send the Claimant the required equipment. Following a disciplinary hearing on 30 August 2022 into these matters, the Claimant was issued with a final written warning which included a performance improvement plan.[7]In December 2022, the Respondent discovered that on 3 occasions namely 7 October 2022, 24 October 2022 and 16 November 2022, the Claimant had used the Company’s credit card to purchase fuel for his personal vehicle and also misled his manager on 1 December 2022 about carrying out a job which he had in fact failed to carry out correctly on 21 November 2022. It was also alleged that the Claimant drove using his cell phone on 24 November 2022, that the Claimant made accusatory comments concerning other Employees which was causing unrest within the workforce and that on the 29 November 2022, the Claimant failed to carry out a reasonable management instruction to put equipment in his work van thereby failing to ensure his work van was fully equipped to deal with any change to job allocations.[8]On 7 December 2022, the Claimant was suspended pending investigation of the allegations set out in the above paragraph.[9]On 15 December 2022, the Claimant was invited to an investigation meeting held on 16 December 2022 and chaired by an external consultant from the Respondent’s HR advisors, Peninsula Business Services. Her name was Ms Amanda Stevens. The Respondent decided that due to the seriousness of the charges against the Claimant and the fact that he was on a final written warning, it was best to deal with the new allegations against the Claimant by involving their external HR advisors to ensure that the disciplinary procedure was conducted in a fair manner.[10]During the investigation, the fuel receipts provided by the Claimant and his van tracker information were analysed which showed that at the time the fuel was purchased, the Claimant’s van was on the Respondent’s site. For example, on 7 October 2022, the Claimant’s van was on site at 17.28 as shown on the tracker information but fuel was purchased at 17.35 at the Shell garage (which was about 200 metres away) from the Respondent’s site to the value of £82.69. The Claimant’s clock record showed him clocking off at 17.30. On 24 October 2022, the van was shown to be on site at 15.55. The Claimant clocked off at 15.58 and £48.58 of diesel fuel was added to his vehicle at 16.00. Finally, on 16 November 2022 the Claimant’s van was on site at 17.10 and £51.82 fuel was added to the Claimant’s vehicle using the Respondent’s credit card at 17.14. The clocking out time was 17.11. In addition, Mr Jones gave evidence that for this latter occasion, he had viewed CCTV footage of this incident with the Manager of the Shell garage which showed that the Claimant was fuelling his own diesel vehicle at this time. The Tribunal accepted his evidence even though the CCTV footage was not produced. Mr Jones said that the Respondent had tried to get this footage from Shell, but the company would not provide it to a third party unless compelled to do so as a consequence of a police investigation.[11]Following the investigation meeting, Ms Stevens prepared a detailed report that recommended that the Claimant be invited to a disciplinary hearing to answer to the allegations. On 13 January 2023, Ms Westwood invited the Claimant to a disciplinary hearing to be held on 18 January 2023. The hearing was to be conducted by another external consultant, Mr. Scott Bowie also an employee of the Respondent’s HR Advisors. The Claimant was advised in the disciplinary hearing invitation letter that if he did not give a reasonable explanation as to why he had bought fuel with the company credit card while the company van was on the Respondent’s site, he could face dismissal for gross misconduct. The Claimant was provided with Ms Stevens report plus all relevant evidence relating to the misuse of the Respondent’s credit card including the notes of his meeting with Ms Stevens, the clocking in and out records, the receipts for the fuel and the tracker records showing that the van was on site when the credit card was used. Th Claimant was also provided with the disciplinary procedure and the Respondent’s policy ‘Deductions from a Pay Agreement.’ He was advised of his right to be accompanied to the meeting by a work colleague.[12]The disciplinary hearing was conducted by Mr Scott Bowie, an external consultant employed by the Respondent’s HR Advisors, Peninsula Business Services. All of the allegations were put by Mr Bowie to the Claimant and a detailed note was taken of what the Claimant had to say. In relation to the three serious allegations of using the credit card to fuel his own vehicle, the Claimant could not offer a reasonable explanation asserting that he may have added fuel to his own vehicle by mistake or alternatively, he could not have done so in the limited amount of time shown on the receipts and clocking out evidence. He also asserted that his own vehicle could not hold the amount of fuel that was shown on the receipts. Mr Bowie did not accept this evidence finding that the credit card was used to add fuel to the Claimant’s own vehicle as the Shell garage was no more than 200 metres from the Respondent’s site and the explanations offered by the Claimant were not reasonable. Following the meeting, Mr Bowie prepared a report dated 18 January 2023 to the Respondent outlining his findings and recommendations. The Claimant did not assert at the Tribunal hearing that there was any criticism by him of how Mr Bowie had conducted the disciplinary hearing.[13]In relation to the allegation of the Claimant misleading his manager about a job completed, it was found that further to the previous final written warning, the Claimant had continued to display unsatisfactory levels of conduct and did not meet his performance plan. The Claimant’s failure in relation to him misleading his manager concerning work carried out for a customer was upheld as serious misconduct. In relation to the allegations relating to the use of the company credit card for the Claimant’s personal gain, Mr Bowie found that they amounted to gross misconduct as per the Respondents ‘Deductions from Pay Agreement’ and was gross misconduct according to the disciplinary procedure as it amounted to theft/fraud. Mr Bowie therefore recommended that the Claimant be dismissed for gross misconduct.[14]After considering the report, Ms Westwood decided on 30 January 2023, that the Claimant be dismissed for gross misconduct. She gave evidence which the Tribunal accepted that the Respondent had lost trust and confidence in the Claimant as he had effectively stolen from the Respondent. He had used the company credit card on three separate occasions to fuel his own vehicle. Even without taking into account the fact that the Claimant had a live final written warning on his record, Ms Westwood said that the Claimant would have been dismissed for using the fuel card in contravention of the ‘Deductions from Pay Agreement.’ She gave evidence which was accepted by the Tribunal that there were a number of independent factors taken into consideration in helping her come to that conclusion. The tracker records showed the company van was on site when the fuel card was used. The clocking out records on the three days in question showed the Claimant had clocked out from work when the credit card was used. The receipts that were obtained for the fuel that was dispensed showed times after the Claimant had logged out from work and the van was on site. It was reasonable therefore to conclude that the credit card was used to fuel a vehicle other than the company van allocated to the Claimant. On the last occasion on 16 November 2022, Mr Jones had viewed CCTV footage that showed the Claimant fuelling his own BMW diesel motor vehicle and not the company van. The Claimant could not provide a satisfactory response to Mr Scott as to his actions. As a consequence, she issued a letter dated 30 January 2023 dismissing for gross misconduct. The Claimant was given the right to appeal but failed to appeal the decision.
Law
[15]Section 98(1) ERA provides that it is for the employer to show the reason or principal reason for dismissal of the employee and that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. If the Respondent fails to do so the dismissal will be unfair.[16]If the Tribunal decides that the reason for dismissal of the employee is a reason falling within Section 98(1) or (2) ERA it will consider whether the dismissal was fair or unfair within the meaning of Section 98(4) ERA. The burden of proof in considering Section 98(4) is neutral.[17]Section 98(4) ERA provides:- “the determination of the question whether the dismissal is fair or unfair (having regards to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[18]In the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, guidance was given that the function of the Employment Tribunal was to decide whether in the particular circumstances the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair. If the dismissal falls outside the band, it is unfair.[19]In the case of Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23CA, guidance was given that the band of reasonable responses applies to both the procedures adopted by the employer and the sanction, or penalty of the dismissal.[20]The Tribunal should not substitute its own factual findings about events giving rise to the dismissal for those of the dismissing officer (London Ambulance NHS Trust v Small [2009] IRLR 563).[21]In the case of British Home Stores v Burchell [1978] IRLR 379 EAT, guidance was given that, in a case where an employee is dismissed because the employer suspects or believed that he has committed an act of misconduct, in determining whether the dismissal was unfair, an Employment Tribunal has to decide whether the employer who discharged the employee on the grounds of misconduct in question and obtained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time. This involved three elements. First, there must be established by the employer the fact of that belief, that the employer did believe it. Second, it must be shown that the employer had in its mind reasonable grounds upon which to sustain that belief. Third, the employer at the stage on which he formed that belief on those ground, must have carried out as much investigation into the matter as was reasonable in all of the circumstances of the case. The Tribunal’s Findings[22]The Tribunal found that the dismissal was for serious misconduct. Paragraph six of the Respondents ‘Deductions from a Pay Agreement’ which was provided to the Claimant and which he was aware of having signed for it on 3 February 2020 stated as follows, “If you are provided with a company fuel/credit card, you are responsible for its security and safe keeping…… the card is to be used exclusively for business purposes only and receipts should be obtained for every transaction….. Personal use is not permitted under any circumstances. Misuse of the card and or failure to comply with company procedures will result in disciplinary action, which may result in your dismissal. You will be required to reimburse us the cost of any unauthorised expenditure.’ In addition, the Claimant confirmed that he was provided with the company’s disciplinary procedure which confirmed that examples of gross misconduct included serious instances of theft or fraud. It was put to the Claimant in cross examination and accepted by him that if the Respondent found that he had misused the company credit card for personal use it was contrary to the disciplinary procedure and ‘Deductions from Pay Agreement’ and that the Respondent was entitled to dismiss without notice. Although the Claimant gave evidence of the Respondents efforts to terminate his employment for some other reason, he did not produce any evidence of this and the preponderance of the evidence adduced to the Tribunal showed that the genuine reason for dismissal was due to the Claimants breaches of the ‘Deduction from Pay Agreement’ and the Respondent's disciplinary procedure in so far as it related to gross misconduct and serious instances of theft or fraud. Therefore, the Tribunal found that the reason for dismissal was serious or gross misconduct.[23]In relation to the procedure that the Respondent followed to dismiss the Claimant, he admitted in cross examination that the Respondent undertook a reasonable investigation, considered the matter at a disciplinary hearing and gave him the right of appeal against dismissal which right he did not exercise. The Tribunal found that the Respondent conducted an investigation into the Claimants alleged misconduct and that this was conducted by an independent external consultant, Ms Amanda Stevens on 16 December 2022. An investigation report was prepared by her, and this was provided to the Claimant on 13 January 2023 along with the evidence in support of the allegations against the Claimant. He was given the right to be accompanied at the disciplinary hearing by a work colleague. The Claimant was invited to a disciplinary hearing on 18 January 2023 in front of an external consultant commissioned by the Respondent (Mr Scott Bowie) to conduct the hearing. The Claimant did not argue that he was not able to present his case at the disciplinary hearing or put the points that he wished to put in his defence at that hearing. He had no criticism of the way that the disciplinary hearing was conducted. In addition, he was provided with a detailed letter of dismissal on 30 January 2023 setting out the reasons for dismissal and given the right of appeal against dismissal. He confirmed that he did not exercise that right of appeal.[24]The Claimant tried to persuade the Tribunal that his failure to appeal was related to the Respondent having already made its mind up and that he would not be given a fair right of appeal. However, the Tribunal was not persuaded by this argument. The Tribunal found that the Respondent in this case took the matter extremely seriously and in order to avoid the assertion of bias, it had commissioned its external human resources advisors (Peninsula Business Services) to conduct an independent investigation. Ms Stevens undertook a detailed investigation and prepared an investigation report. This report was provided to the Claimant along with supporting documents. In addition, the Respondent commissioned an external disciplinary officer, Mr Scott Bowie to undertake the disciplinary hearing with the Claimant. The Claimant was given a full opportunity to respond to the allegations. Following the disciplinary hearing, Mr Bowie prepared a detailed report to the Respondent of his recommendations dated 26 January 2023. As a consequence of the report, Ms Westwood decided that the Claimant should be dismissed in respect of three instances of misuse of the company credit card to fuel the Claimants own vehicle on 7 October 2022, 24 October 2022 and 16 and November 2022 contrary to the Respondents procedures. The Tribunal found that the Claimant was unjustified in making his assertion that he was not given an unbiased hearing. To the contrary, the Tribunal found that the Respondent was meticulous in its efforts to give the Claimant an independent and unbiased disciplinary hearing. Had he chosen to appeal against his dismissal, it was highly likely that the Respondent would have commissioned its human resources provider to provide an independent consultant to conduct that hearing. This would have given the Claimant an opportunity to put his appeal to an unbiased consultant who would have undertaken that appeal. The Tribunal found no evidence that the Respondent had any ulterior motive in dismissing the Claimant or that it had prejudged the issues. Furthermore, there was no evidence adduced for the Tribunal for it to conclude that the Respondent did not give the Claimant a fair hearing or conduct a fair investigation.[25]At the Tribunal hearing, the Claimant was under a misapprehension that the Respondent was not able to prove that he had misused the company credit card on the three dates of 7, 24 October and 16 November 2022 to a criminal standard of proof. This was highlighted by his questioning of the Respondent’s witnesses in respect of their failure to report the matter to the police and obtain CCTV footage from the Shell garage at which he fuelled his vehicle on those three occasions. It should be noted from the legal section cited above that the Respondent is not obliged to prove the Claimant’s guilt to the criminal standard of proof. Furthermore, the Respondent is not obliged to report the matter to the police if it chose not to do so. The Respondent’s witnesses gave evidence which was accepted that the Respondent took the view that the police would not allocate their limited resources to investigate the matter if it could be dealt with internally by way of the disciplinary procedure. In addition, the Respondents witnesses gave evidence which was accepted that they could not obtain CCTV footage in respect of the three dates in question because the Shell garage was an external third party who would not produce evidence to another third party due to data protection issues and/or unless it was compelled to do so by the police undertaking a criminal investigation.[26]The Claimant’s main contention at the Tribunal hearing was that on the three occasions that it was asserted that he added fuel to his own vehicle after clocking out, he simply could not have done so in the time period set out in the evidence produced by the Respondent at the disciplinary hearing. He said that on the first ocassion on 7 October 2022, he only had five minutes to fuel his own vehicle after clocking out. On 24 October 2022, he only had two minutes to do so and on 16 November he had three minutes to do so. Mr Bowie, the consultant undertaking the disciplinary hearing concluded that because the Shell garage was so close to the Respondent’s site, the Claimant did have enough time to fuel his own vehicle within the time periods specified. The Tribunal accepts those findings as the Claimant produced no evidence to the Tribunal that showed otherwise. He simply stated that he could not do so. He said the same thing to Mr Bowie at the disciplinary hearing but produced no evidence that showed that it was not possible to do so. Furthermore, Ms Westwood asserted that there were a number of other independent factors taken into consideration in coming to the conclusion that he did in fact use the company credit card to fuel his own vehicle. These included the evidence of the tracker records that showed the company van was on site when the fuel card was used. Clearly no fuel could be added to the company van on the three occasions that the credit card was used. The clocking out records on the three days in question showed the Claimant had clocked out from work when the credit card was used. The receipts that were obtained for the fuel that was dispensed showed times after the Claimant had logged out from work and the van was on site. She also said that on the last occasion on 16 November 2022, Mr Jones had viewed CCTV footage that showed the Claimant fuelling his own BMW diesel motor vehicle and not the company van. The Claimant was asked at the disciplinary hearing to explain this evidence but could not provide a satisfactory response to Mr Bowie as to his actions. She gave evidence which was accepted that it was reasonable, therefore, to conclude that the credit card was used to fuel a vehicle other than the company van allocated to the Claimant. Therefore, she asserted that the Respondent could reasonably come to the conclusion that the Claimant had breached the ‘Deductions from Pay Agreement’ and was guilty of gross misconduct.[27]The Tribunal was satisfied that the requirements of the ‘Birchell’ test had been satisfied namely that the Respondent had a genuine belief in the guilt of the Claimant based upon a reasonable investigation. It considered what the Claimant had to say at a properly constituted fact-finding investigation and disciplinary hearing. He was also given the right of appeal against dismissal which he chose not to exercise for no good reason.[28]The Tribunal is conscious that it could not substitute its own views but nonetheless, is in agreement that dismissal for gross misconduct was within a band of reasonable penalties open to a reasonable employer in respect of the three allegations of theft/fraud in respect of the use of the company credit card. As a consequence, the Claimant’s claim for unfair dismissal is dismissed. At the Tribunal hearing, Ms Westwood helpfully confirmed that the Respondent would provide a reference on behalf of the Claimant confirming his job title and his dates of service. This should assist the Claimant to obtain suitable alternative employment.