Mr U Butt v 2 Sisters Food Group Ltd: 1305616/2023
EMPLOYMENT TRIBUNALS
Case No 1305616/2023
Between
Mr U ButtClaimant2 Sisters Food Group LtdRespondent
Before
Employment Judge DimbylowMr N Bidwell-Edwards (instructed by Counsel) for respondentDate 6 August 2024
JUDGMENT
The judgment of the tribunal is that the claimant’s claim for unfair dismissal is well-founded, and I declare that the claimant was unfairly dismissed by the respondent. I order the respondent to pay compensation to the claimant in the following amount:[1]The basic award: £452.98 x 2 = £905.96.[2]The compensatory award:(1) loss of earnings for 13 weeks (this being the length of time when the contract of employment would have ended fairly) - £383.99 x 13 = £4,991.87(2) loss of pension payments £452.98 x 3% = £13.58 x 13 weeks = £176.54 and(3) for loss of statutory employment rights the sum of £500.00. The total compensatory award is £5,668.41.[3]The claimant contributed to his dismissal to the extent of 50% and it is just and equitable to reduce the basic award and the compensatory award by that amount.[4]Therefore, the total amount payable by the respondent to the claimant is £3,287.18. Case Number 1305616/2023[5]Recoupment of benefits does not apply as the claimant did not receive any state benefits. Signed by: Employment Judge Dimbylow Signed on: 6 August 2024 Notes:(1) Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing (and no such request was made) or a written request is presented by either party within 14 days of the sending of this written record of the decision.(2) All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant and respondent.(3) Recording and Transcription(4) Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:(5) https://www.judiciary.uk/guidance-and-resources/employment-rules-andlegislation-practice-directions/
REASONS
1.1 The claim. This is a claim by Mr Usman Butt (the claimant) against his former employer 2 Sisters Food Group Limited (the respondent). The claim form was presented on 19 August 2023, following early conciliation through ACAS, the dates on their certificate being 6 August 2023 and 8 August 2023. In it, the claimant complained of unfair dismissal pursuant to section 111 of the Employment Rights Act 1996 (“ERA”). The response form was lodged on 20 September 2023 and the claim was resisted. The tribunal gave the parties notice of a two-day hearing by letter dated 13 January 2024 and at the same time gave standard directions for the just disposal of the case.1.2 A few days before the start of this hearing, it became apparent that an interpreter was required for the claimant and the tribunal arranged for that to happen. The tribunal organised an interpreter in Urdu for the original 2 days, although we had a different person each day. Consequently, and with the claimant requiring a complete translation we were unable to complete the hearing in the 2 days allocated. By 4 pm on the 2nd day I had heard all the evidence and taken the submissions from both parties; but had run out of time to give an oral judgement and reasons. Thus, we agreed to list the case for a further day, and an interpreter was booked for the 3rd day as well.[2]The issues.(i) The claimant alleges that he was unfairly dismissed on 31 May 2023.(ii) The respondent admitted that the claimant was dismissed on 31 May 2023 and contended that such dismissal was fair by reason of conduct and/or capability and that it acted reasonably in treating 1 of those reasons as sufficient for dismissing the claimant.(iii) What was the reason for the claimant’s dismissal on 31 May 2023?(iv) Was the reason for the claimant’s dismissal a potentially fair reason, in accordance with s98(2) ERA?(v) If there was a potentially fair reason, did the respondent act reasonably in the circumstances in treating the claimant’s alleged conduct/capability as a sufficient reason to dismiss in accordance with s.98(4) ERA?(vi) Did the decision to dismiss fall within the range of reasonable responses that a reasonable employer in those circumstances might have adopted?(vii) In particular, if the potentially fair reason was conduct, at the time of the dismissal: (a) Did the respondent believe the claimant to be guilty of misconduct? (b) Did the respondent have reasonable grounds for believing that the claimant was guilty of that misconduct? (c) At the time the respondent held that belief, had it carried out as much investigation as was reasonable? (BHS v Burchell)(viii) Should there be any reduction to any compensation on the grounds of Polkey or contributory fault?(ix) If it was capability a different test applied; but I do not recite it now, for as the facts unfolded it became plain that finally the reason was conduct.3.1 The law relating to dismissal. The relevant provisions, in relation to the fairness of any dismissal, arise out of the ERA and are the following (s.98): “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) 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. (2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (ba) is retirement of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard 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."3.2 Thus, there is an initial burden of proof upon the respondent in a claim for unfair dismissal to establish a potentially fair reason for dismissal pursuant to s.98 (1) and (2). Conduct is a potentially fair reason. The burden of proof is upon the balance of probabilities. Should the respondent establish a potentially fair reason, then the test on overall fairness is neutral; there is no burden of proof on either side. Overall fairness is determined having regard to the requirements of s.98 (4). This would include the tribunal examining the investigation, disciplinary and appeal processes. I had regard to the ACAS Code of Practice. The issue of what would have happened if a fair procedure had been followed also fell to be considered, as did contributory conduct by the claimant.3.3 The tribunal has received judicial guidance on how to apply the law relating to unfair dismissal claims. The tribunal must determine whether the claimant was fairly dismissed in all the circumstances, by reason of his conduct/capability, taking into account the size and administrative resources of the respondent. Guidance on the statutory test as to whether a dismissal for misconduct is fair, or not, is contained in a number of cases and in particular: (i) British Home Stores v Burchell [1978] IRLR 379 (ii) Iceland Frozen Foods v Jones [1982] IRLR 439 (iii) Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23 In short, the test to be applied is this: (i) Did the respondent (through dismissing officer Mr Williams and appeal officer Julia Stacinskaite) genuinely believe in the facts found? (ii) Did the respondent (through those officers) have reasonable grounds upon which to sustain that belief? (iii) Had the respondent carried out a reasonable investigation giving rise to those reasonable grounds and belief at the stage upon which the belief was formed? (iv) Thereafter, was the decision to dismiss within the band of reasonable responses open to the respondent, in all the circumstances of the case?3.4 As to contributory conduct, the ERA sets out the law in relation to the basic award at sections 118 to 122, and the compensatory award at sections 123 and 124. Both awards can be reduced because of contributory conduct. The basic award includes, at s.122(2): “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.” And s.123(6): “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.”3.5 If I held the dismissal to be unfair, I was asked to determine whether or not the claimant contributed to his dismissal insofar as it might affect the basic award and any compensatory award and if so to what extent. The test applied is as set out in the case of Nelson v BBC (No.2) [1979] IRLR 346. These factors must be satisfied if I am to find contributory conduct:[1]The relevant action must be culpable or blameworthy.[2]It must have actually caused or contributed to the dismissal.[3]It must be just and equitable to reduce the award by the proportion specified. Culpable or blameworthy conduct could include conduct which was “perverse or foolish”, “bloody-minded” or merely “unreasonable in all the circumstances”. This has to be dependent upon the facts of the case. Wide forms of conduct are envisaged. I have approached the subject with a completely open mind. I know from Nelson that the conduct in question does not have to amount to a breach of contract or a tort and can be given a broad interpretation. 3.6 Also, the principle arising out of the case of Polkey v AE Dayton Services Ltd [1988] ICR 142, HL fell to be considered; but I do not propose to say much about the law on it here, save that if I were to find the dismissal procedurally unfair, I may go on to decide what would have happened if a fair procedure had been followed, make a percentage assessment of any chance that the claimant would have lost his employment, and in appropriate circumstances make a reduction in the amount of any compensation awarded.[4]The evidence. I received oral evidence from the following witnesses: For the respondent: Mr Martyn Williams. And the claimant gave evidence in his own cause. I also received a number of documents which I marked as exhibits as follows: C1 Claimant’s witness statement C2 Claimant’s GP letter dated 7 June 2024 R1 Agreed bundle of documents (176 pages) R2 Witness statement of Mr Williams[5]The tribunal’s findings of fact. I make my findings of fact on the basis of the material before me taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. I have resolved such conflicts of evidence as arose on the balance of probabilities. I have taken into account my assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts.[6]The claimant was born in 1989 and is now 35 years of age. He commenced work with the respondent on 23 October 2020 and the effective date of termination was on 31 May 2023 when he was told orally, he was dismissed, the decision being confirmed later by letter of 26 June 2023 (120-121 of the bundle). It included this, from Mr Williams: “My Findings · You had a final written warning on the 12th January 2023 · You have had 58 days absence on 10 separate occasions in the last 12 months · Since your final written warning on the 12th January 2023, you have had a further 41 days absence · Since your final written warning on the 12 January 2023, you have not followed the absence procedure” Mr Williams confirmed that he found the claimant’s actions: “constitute an act of gross misconduct” and confirmed the decision of summary dismissal, without notice. He went on to give the following reasons: “· Failure to follow company absence procedure · You have been absent for a total of 58 days on 10 separate occasions in the last 12 months”[7]The claimant was employed as a Hygiene Operative. The claimant was paid a gross salary of £11.3245 per hour and for a basic 40-hour week he was paid £452.98. He was in a pension scheme. Since his dismissal the claimant has tried to find other work but without success. He attributes this to the fact that there are so many people looking for cleaning jobs. I might as well mention it at this stage, but the respondent did not seriously attempt to prove that the claimant had failed to mitigate his losses, and I find and conclude that the respondent did not establish on the balance of probabilities that he failed to mitigate his losses.[8]The respondent is a food manufacturing company. It has 2 sites in the West Midlands, one at West Bromwich known as “site D” and the 2nd is in Wolverhampton and is known as “site E”. There are about 7,000 employees of the respondent which has a further 7 sites around the country. The respondent is a large employer by any standard. It has its own in-house HR function but goes outside for legal advice. The respondent supplies chicken to named brands such as Marks & Spencer, Asda and Tesco. The same work is undertaken at sites D and E. Mr Williams was and is employed by the respondent as a Senior Hygiene Manager at sites D and E and has been employed by the respondent since August 2018.[9]The claimant was born in Pakistan. He attended High School in Pakistan where unfortunately he failed his Secondary School Certificate on Matriculation when he left in 2008. After leaving school he worked as an air-conditioning technician for a number of years. He also went to work in Malaysia in the construction industry for 2 years. When he returned to Pakistan, he worked in a chicken shop where he throttled chickens in preparation for them to be sold. He explained to me that they were slaughtered and prepared in front of customers for sale to them. He married whilst living in Pakistan and his wife came to the UK before the claimant. He came to the UK on 10 September 2020. The 1st job he applied for in the UK was with the respondent when he was originally engaged as a Production Operative on the day shift where he was managed by Mr Rashid Zafar, QA Supervisor.[10]The claimant made a request to work nights in order to undertake childcare in the daytime and this was granted in July 2022. On the night shift the claimant became a Hygiene Operative. Mr Williams has ultimate responsibility for Hygiene Operatives at both sites E and D. The daily management of the claimant was undertaken by Gabor Benkovics and Vikram Singh (Hygiene Supervisors) who reported to Mr Williams. The claimant was known to Mr Williams, but not well, although they occasionally spoke on site or when attending team meetings. They were to have a number of meetings later when the claimant’s attendance became an issue, and the disciplinary process began. The claimant occasionally requested an interpreter in some meetings; but not always. Mr Williams was surprised to hear the claimant assert at the start of the hearing that he required a complete translation of the proceedings because he could only say “yes” and “no” in English. The evidence of Mr Williams was that: “In my experience Usman had a good grasp of English and was easily understood and could understand conversations in English”.[11]I would say something about the claimant’s wife and representative at this stage. She came to the UK some years before the claimant and undertook a degree course and obtained a Masters. She has been doing the ACCA exams but has yet to pass them all. She has had various jobs in the past but is not currently working. She presented as articulate and intelligent and for a lay representative she had a good grasp of the case and knew her way around the bundle. She was able to draw together a number of strands of argument in her submissions which I will talk about later. Mrs Butt was able to follow the proceedings in English and did not require the interpreter.[12]The claimant and his wife have a daughter who is now 2 years of age. Neither of them works, neither of them is eligible for benefits according to their account of things and unfortunately for them they are having to borrow money to survive at the moment. They could not afford a childminder for their daughter for this hearing and therefore they had to juggle with her, for example, one of them having to take her out of the room or to nurse her and carry her around the room, during it if she became over noisy.[13]The issues before me started to be recorded on a formal basis with a meeting on 18 May 2022. The claimant was given a letter dated the previous day (82-83) by hand informing him that he had to go to a disciplinary hearing the next day. The disciplinary chair would be Rashid Zafar, and the purpose of the hearing was to consider allegations of misconduct as follows:(1) unsatisfactory levels of attendance-having been absent on more than 3 occasions and for more than 15 days in the last 12 months, and(2) failing to notify the respondent of absence on numerous occasions, being a breach of employment terms and conditions. The letter indicated that a thorough investigation had already taken place and the claimant’s absence calendars were enclosed. The claimant had been advised that he could bring a fellow employee or trade union representative to the meeting.[14]The meeting took place as arranged and there are 5 pages of notes commencing at page 84. The claimant confirmed that he was happy to be unaccompanied and did not feel the use of a translator would be beneficial. An HR representative was present in the hearing which lasted 20 minutes. During the meeting Mr Zafar translated things for the claimant. During the conversation the claimant was able to establish that he had been in touch on many of the occasions where specific dates were drawn to his attention. However, there were times when the claimant accepted that he did not get in touch. An example of this is when he told Mr Zafar that his phone was off as he was in the hospital with his wife, and she was unwell during the birth. At the end of the meeting the claimant was told that: “Any more unauthorised [absence] he will go through the same process again.” There had not been an investigatory meeting prior to the disciplinary meeting on 18 May 2022. Mr Zafar had gone back to 3 July 2021 and dates were discussed until April 2022. Given the length of time under consideration the respondent had not acted quickly in dealing with this issue. No doubt this helped the claimant; but it is not best practice under the ACAS code, and probably lulled him into a false sense of security about his behaviour and how it would be dealt with. The outcome was confirmed by letter dated 26 May 2022 delivered by hand (89). It confirmed that the facts complained of amounted to misconduct and a verbal warning would stay on his record for 6 months from the date of issue. The letter confirmed that the claimant had the right to appeal; but he did not exercise that right.[15]The claimant had more time off sick in May 2022. The claimant’s reporting of his sickness absences and his absences generally caused further action to be taken. On 10 January 2023 the respondent wrote to the claimant (94/95) directing him to attend at a disciplinary hearing on 12 January 2023 at 11pm before Mr Williams as disciplinary chair. Again, there were 2 items, now described as “gross misconduct”:(1) failure to follow company absence procedure and(2) more than 15 days absence and on more than 3 occasions in the last 12 months. A copy of the absence calendars was enclosed and the usual advice that one would expect to see within the letter. Again, there was no investigatory meeting.[16]The meeting took place as arranged and lasted one hour and 10 minutes. There was no one representing HR. Vikram Singh was present to support Mr Williams and take notes. The claimant signified that he was happy to continue unaccompanied and did not think the use of a translator would be beneficial. I do not propose to recite everything that occurred in the meeting, but various matters were put to the claimant. He was able to answer some of them by reference to his mobile phone. However, an important date was 24 December 2022. The claimant had applied for a day’s holiday, but it had been refused, although it was only a few days before then that he received that information. He did not go to work. The notes say this about it: UB Booked holiday MW Not approved, what did you do? UB Problem coming in. MW Did you get offered a lift. I noted the claimant failed to answer the question, as was the case on numerous occasions here at the hearing in the tribunal. I find the claimant was offered a lift. I return to the dialogue: UB My sister going somewhere MW Did you go to London UB Yes MW Looking at the absence/sick do you have any issues, can I help you with anything? UB Transport problems[17]Mr Williams adjourned the hearing for 20 minutes to think about it and upon his return he said this: “I have looked at the evidence, listened to what you have said, your absence is poor, probably the worse I have seen in a long, long time, you seem to think absence is normal and you are entitled to be off. The team here is small, any impact has a huge effect on the finished standards. Blatantly going to London on 24th December after having holiday rejected, plus being offered a lift to and from work is not acceptable. Saying that I understand you travel a long way to work that said you are willing to improve. On that evidence I am giving you a final written warning, that will stay on your file for 6 months, do you understand?” The claimant said that he did. The claimant was told he had a right to appeal in 7 days in writing. He did not appeal.[18]The incident on 24 December 2022 was important and it was Mr Williams who had offered to collect the claimant from his home and take him back after the shift. Having offered to support the claimant in such a way, this had a substantial in fluence on how Mr Williams proceeded. The importance of it was clearly recognised by the claimant as he deals with it in his witness statement (para 8), and part of it says this: “I had to go to London for urgent work and no one said to me that it is not approved and just before 2 day I was informed that it was rejected. I told my manager…. that I made arrangements for my travel which I can’t cancel. The supervisor himself went on holiday on that date and didn’t inform me anything.” I find that the supervisor referred to is Mr Williams. I find that he cancelled his own holiday to go to work and it was on this basis that he offered the lift to and from work to the claimant.[19]On 2 February 2023 (100) the respondent wrote to the claimant. According to their records he had been absent since 25 January 2023 and had failed to contact the respondent. He was asked to contact the respondent by 12pm on Saturday, 4 February 2023 to give a reason for the absence. The letter confirming the outcome of the disciplinary hearing was dated 3 February 2023 (101/102). Mr Williams gave the claimant a final written warning which would stay on the claimant’s record for 6 months from the date of issue. Mr Williams had found that the claimant had acted in a manner which he considered was misconduct. Again, a number of formal points were made in the letter including the right to appeal.[20]The claimant then went off work from 30 January 2023 and produced a number of sick notes indicating “chest infection”. On one day 22 February 2023 the claimant attended work and felt unwell and returned home after some 15 minutes. On 17 March 2023 the respondent wrote (107) to the claimant requiring him to attend an investigation meeting on Tuesday, 21 March 2023 at 10pm. This was to investigate allegations of gross misconduct in the form of: “(1) failure to follow company absence procedure and (2) being absent for 68 days in the last 12 months.[21]The record of the investigation meeting on 21 March 2023 (109/110) shows that the investigating officer was Mr M Hassall. There was no one from HR and the claimant had Mr V Singh as representative and translator if required. Strangely enough, the notes say the claimant was happy to continue unaccompanied. He indicated he felt the use of the translator would be beneficial. The basic facts are laid out for the claimant, the claimant being absent for 68 days in 12 months and was not following company absence procedures on the absent days. The notes record this exchange: MH Can you explain to me why [the claimant was absent on the 68 days]. UB Could not get sick note in January. No doctor & I have been sick since 31st January 2023 to 15th March 2023 & I sent in sick notes for this period. MH So are you well now & for how long. UB Well now & still have issues but are feeling well. MH Forget last year this year is no better. UB No one to help me in this country & am alone. Only wife & child in this country. MH Do you want to add anything to this statement. UB No not my fault. I am sick that’s why I am not here.[22]By letter dated 22 May 2023 (111/112) the claimant was invited to a disciplinary hearing on Wednesday, 24 May 2023. The purpose of the hearing was to consider allegations of gross misconduct against the claimant for:(1) failure to follow company absence procedure, and(2) being absent for a total of 58 days on 10 separate occasions in the last 12 months. The meeting could not take place on 24 May for reasons relating to the respondent and it was rearranged on the 31 May commencing at 5am. The notes of the meeting commenced at page 113. The meeting was before Mr Williams, and the notes say the HR representative was “R Zafar” and it is agreed by everyone as a fact that he does not have an HR role. The claimant signified that he was prepared to continue unaccompanied and did not feel the use of a translator would be beneficial. I do not propose to recite everything that was said here but the claimant confirmed that he had some sickness absences with an infection, although he did not say that this was caused by work. He also said that he had not had any absences since his last sick note except for one day off for when his uncle passed away.[23]Mr Williams signified that he would have a short break and then call the claimant back in at 5:15am. When he did that, he resumed and said this: “I had a look at the evidence and found that 58 days were off on 10 separate occasions, and [you] failed to follow absent procedure. My decision is to dismiss you from now. You have to write to appeal against my decision…..Appeal must be made in writing to HR within 7 days.” This presented as very rushed.[24]The claimant appealed against the dismissal decision by email dated 1 June 2023 (116). The claimant said this: “I am not happy with this decision as it is unfair to dismiss me on sick where I had the sick notes from the doctor that was caused by the chemical which has been provided by the company without full ppe.” He had no reply and sent a chasing email on 7 June 2023 (116).[25]The appeal hearing took place on 15 June 2023 before Julija Stacinskaite. Unfortunately, she no longer works for the respondent and did not appear at the hearing. The record of the hearing begins on page 117. The notes on the introduction did not refer to having an HR person present or whether the claimant would like a translator or interpreter. There was reference to “Appeal Officer’s Witness (if relevant)” and the name in the box was “Lynsey”. The box referred to as “Employee Representative” had the name “Ahsan Ayaz” in it. The claimant was asked to explain his appeal and he said: “I was absent due to chemicals from work-I am a cleaner.” Then: JS Was that the reason on the doctor’s note JS Did he mention this to the managers UB I did mention it Again, the claimant did not answer the first question, which is an approach the claimant took during this hearing, and which I mentioned earlier. Continuing the exchange: LW Can I just ask about the rest of your absences & awol’s in the last 12 months UB All sickness from October 2022 due to chemicals LW Did he contact on every occasion UB I always informed my night supervisor, absence line is for daytime staff This was incorrect from the claimant, and I find as a fact that it applied to both shifts. Then continuing: LW Did you contact us on every occasion of absence. UB I have changed my phone I was off sick due to the chemical reason, I don’t want to be sick. I went to hospital, given inhaler & antibiotics. Given box of antibiotics, JS noticed box from 3 years ago. Again, the claimant failed to answer a simple direct question. The meeting lasted 22 minutes and the claimant signed the notes.[26]The letter from Mr Williams to the claimant confirming the disciplinary hearing outcome was dated 26 June 2023 (120/121), which of course is after the appeal hearing. The letter confirmed that the claimant was dismissed for gross misconduct and without notice or pay in lieu thereof. The 2 grounds were identified as:(1) failure to follow company absence procedure, and(2) “you have been absent for a total of 58 days on 10 separate occasions in the last 12 months.”[27]The appeal was rejected; and the outcome letter was also dated 26 June 2023 (122/123). It was sent to the claimant by email and attached the dismissal letter of the same date. The claimant was told that the original decision was upheld, summary dismissal being applied. The decision included this: “You currently have a live final warning and since then you have had 6 unauthorised absences and 41 days of sickness. The business cannot sustain this level of absence.” In the findings of fact, the appeal officer concluded that having read the signed notes from the previous meetings the claimant had failed to state that chemicals were the reason for his chest infection and therefore did not make any further enquiry. That conclusion was in the range of reasonable responses given the facts of the case and the way in which the claimant had presented his side of the events.[28]Some employers may have regarded it reasonable for an employee in the same circumstances as the claimant to be asked to see a doctor to establish whether treatment was necessary and whether the underlying reason for the absence was work-related (ACAS Code appendix 4). I also noted in the Code this: “If there is no improvement, the employee’s length of service, performance, the likelihood of a change in attendance, the availability of suitable alternative work where appropriate, and the effect of past and future absences on the organisation should all be taken into account in deciding appropriate action.” Neither the dismissing officer Mr Williams nor the appeal officer Ms Stacinskaite appear to have considered alternative work and there is very little evidence about the effect of past and future absences. Part of the Code also states this: “In order to show both the employee concerned, and other employees, that absence is regarded as a serious matter and may result in dismissal, it is very important that persistent absence is dealt with promptly, firmly and consistently.” Had the respondent paid heed to the Code there may have been a different outcome.[29]The submissions. Mrs Butt addressed me first. Her submissions were oral. She submitted that there was insufficient evidence for a dismissal, and the procedure was not fair. In particular, the respondent issued a verbal warning and then went straight to a final written warning, whereas under the respondent’s policy there should have been a 1st written warning. There was no investigation before the disciplinary meeting on 12 January 2023. The disciplinary outcome went straight to a final written warning. There was no investigation meeting, and this was a misstep in the process. She submitted that before the 1st disciplinary on 18 May 2022 (84) there was an investigation meeting. She submitted that the claimant had followed the process set out on page 43. Rather confusingly Mrs Butt then asserted that the claimant had not been given that document. She submitted that the claimant did not realise that he had to continue reporting in accordance with the procedure when he transferred to the night shift. Counsel for the respondent intervened at this point to say that the claimant had accepted in his evidence that it applied, and it was not now open to his wife to contradict the point. Mrs Butt then continued and submitted that if there had been an investigation meeting before that on page 84 a verbal warning would not have been issued. In relation to page 96 and the disciplinary hearing on 12 January 2023 there was no HR manager present. At page 109 at the investigation meeting there was no HR person present. Mrs Butt drew attention to the policy at page 57 which showed that an HR person “will be present”. Furthermore, page 113, in relation to the meeting on 31 May 2023 showed that R Zafar was not from HR, he was a QA Supervisor (an agreed fact). Mr Zafar translated for the claimant and was a notetaker. She submitted that it should have been someone independent and a different person and that there may have been a mistake in the notes whilst translating. Mrs Butt referred to “extreme health issues”, although this was not referred to in any of the documentation. Furthermore, the respondent should have considered the health issue and determined whether or not it was genuine. She emphasised the unfairness of the procedure, specifically Mr Williams had acted in a hurry. The claimant wanted reinstatement or reengagement if he was successful. I asked her to consider contribution, and she submitted that for unintentional contributory conduct this would be in the range of 20 to 25% at the most. In relation to Polkey, she submitted that this would not apply as the respondent made a mistake in labelling dismissal as gross misconduct, even though they corrected that later and notice pay was given.[30]I then heard submissions from counsel for the respondent. Mr BidnellEdwards started off by saying the respondent had established on the balance of probabilities a potentially fair reason for dismissal in the form of conduct, or alternatively capability. The respondent had demonstrated that the claimant had repeated unauthorised absences which had mounted up over time and that this was a genuine reason for the dismissal. In relation to the test which I set out above, he asked me to adopt a “holistic” approach and take into account the ACAS Code. The respondent had observed the general principle of fairness, bringing the problem to the attention of the claimant and giving him the opportunity to improve his performance. The process had been a long one, with a series of warnings and this demonstrated overall fairness. Dismissal was within the range of reasonable responses on the facts of the case. Some employers may have done things differently. He submitted that I should not substitute my view for that of the respondent. He reminded me that reasonableness has to be considered at each stage of the process, referring me to the Sainsbury’s case. The claimant knew of the policy at page 43 and had confirmed in his evidence that he knew it existed. Counsel emphasised the importance of the claimant’s job and the importance of cleaning in this industry. He urged me to find Mr Williams to be clear, credible and honest, someone who would hold their hands up if the process was not ideal. The respondent acknowledged the mistake over categorisation of the dismissal as gross misconduct. He submitted that the procedure was not rushed, and whilst HR resources were not deployed in some of the meetings, I should consider the substance of what happened, and nothing would have changed for the claimant if HR had been present. Mr Williams was remarkable and generous in giving a final written warning after the claimant had gone to London on 24 December 2022. Although the ACAS Code recommends different individuals for investigation and disciplinary meetings, I should look at the matter in the round and conclude that the process was reasonable. Counsel urged me to find the claimant evasive, deliberately avoiding questions, belligerent and unable to accept anything was wrong on his part. He was exaggerating in his evidence, and an example of this was the assertion of sustaining “extreme” health issues which was not made out. The claimant was not a credible witness. The claimant was treated with leniency after his absence on 24 December 2022 and given a further opportunity to improve. The claimant did not appeal that decision. On 4 May 2023 it had become apparent that the claimant had taken the day off and was given it as holiday and paid for it. There should be 100% Polkey deduction from any award, and a finding of a 100% contribution to the dismissal by the claimant’s own conduct. The claimant’s conduct was culpable, and blameworthy; and he was also dishonest about what happened on 24 December 2022.[31]My conclusions and reasons. I now apply the law to the facts. I conclude that the respondent has established, on the balance of probabilities, a potentially fair reason for dismissal in the form of the claimant’s conduct. It was the principal reason under section 98 (2) (b) ERA. The detail is set out in the dismissal letter dated 26 June 2023. Then I considered overall fairness and applied the test I have identified above. I concluded that Mr Williams held a genuine belief in the facts found. However, that belief was not held on reasonable grounds, and it did not follow a reasonable investigation. There were a number of errors along the way. There was a misuse of terminology between gross misconduct and misconduct at various stages in the proceedings. There was a crossover between the respondent’s disciplinary policy (56) and the Attendance Management Policy (82). The correct personnel were not always present at the various meetings. Disciplinary meetings were held without any investigation meeting. Mr Williams switched from being the disciplinary meeting decision maker to being an investigator in the same meeting when he thought that the information was insufficient from the original investigation meeting, and then went back to being the disciplinary decision maker. Had an HR person been present at all of the meetings this may have made a difference and given Mr Williams advice and possible pause for thought.[32]The record keeping on the part of the respondent was inadequate, given its size and administrative resources. There was a change of system of recording employees’ presence at the respondent’s premises. It changed from clocking in and clocking out to a facial recognition system which was introduced to avoid fraud. Unfortunately, the claimant did not present himself initially for his photograph, although at some stage later, he did that; but it only worked on about 3 occasions, for reasons which were unclear. The claimant’s absence record for the calendar year 2022 is at page 137 in the bundle and highlights unauthorised absences and other reasons for absence including authorised. The record for 2023 is at page 138 but unfortunately the record ends on 15 March 2023. Two important dates are 25 April 2023 and 4 May 2023. There is no entry for either of these dates on the record. The reason advanced for absence by the claimant was that he attended his uncle’s funeral on 25 April. I conclude that he was absent that day but had failed to follow the procedure. The claimant did not physically attend the funeral, which was in Pakistan, but he watched it via a video link from home. The facts are not clear in relation to 4 May 2023. In the end, the agreed position was that the claimant had failed to notify his absence in accordance with the procedure, but he did get in touch, and it is more likely than not on the balance of probabilities that he was paid a day’s holiday, as I was able to see his payslip confirming the point. There was another attendance diary for the claimant on page 124. It is dated 27 June 2023 but again it is unhelpful because it ends in the middle of March 2023 and has no entries for the 2 dates I have just mentioned.[33]I considered the ACAS Code of Practice on Disciplinary and Grievance Procedures and the Guidance to it. I found that there were serious failings in the procedure. Both the procedure and the guidance provided by ACAS indicate how issues should be pursued. The ACAS guide is quite specific when discussing investigating cases and contains this: “When investigating a disciplinary matter take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against.”[34]It was very difficult to follow the respondent’s data trail, and it was not within the range of reasonable responses not to go through all the absences and look at the manner of contact on each occasion. Nevertheless, I conclude the claimant did not follow the reporting procedure because at best he misinterpreted the requirement to do it when he was on the night shift. He was reminded of the procedure but decided to ignore it.[35]It is worth quoting from the ACAS Guide, appendix 4, “Dealing with absence”. This includes: “Records showing lateness and the duration of and reasons for all spells of absence should be kept to help monitor absence levels. These enable management to check levels of absence or lateness so that problems can be spotted and addressed at an early stage.”[36]The respondent got itself into a bind by crossing over between the disciplinary process and the Absence Management Procedure. This is reflected in the misuse of the terms gross misconduct and misconduct. The investigation meetings were inadequate or never took place. The ACAS Code states: “It is important that disciplinary action is not considered at an investigatory meeting.” ACAS recommend that different people do these tasks.[37]Some employers may have regarded it reasonable for an employee in the same circumstances as the claimant to be asked to see a doctor to establish whether treatment was necessary and whether the underlying reason for the absence was work-related (ACAS Code appendix 4). I also noted in the Code this: “If there is no improvement, the employee’s length of service, performance, the likelihood of a change in attendance, the availability of suitable alternative work where appropriate, and the effect of past and future absences on the organisation should all be taken into account in deciding appropriate action.” Neither the dismissing officer Mr Williams nor the appeal officer Ms Stacinskaite appear to have considered alternative work and there is very little evidence about the effect of past and future absences. Part of the Code also states this: “In order to show both the employee concerned, and other employees, that absence is regarded as a serious matter and may result in dismissal, it is very important that persistent absence is dealt with promptly, firmly and consistently.” Had the respondent paid heed to the Code there may have been a different outcome.[38]Mr Williams had reasonable grounds for his belief in the conduct complained of, but there had not been a reasonable investigation at the time the belief was formed. Was the dismissal otherwise fair? I cannot say that it was, as I conclude it was rushed at the end, including the appeal, which was held before written reasons were given to the claimant, and before the respondent made concessions over the gross misconduct finding and failure to give notice or payment in lieu thereof.[39]At this stage I say something about the alternative reason for dismissal put to me by counsel for the respondent in the form of a capability dismissal. As I have noted before, the respondent was generous with the claimant early in the procedure. No doubt the claimant had a very good relationship with his line managers, who did not take the appropriate steps to challenge the claimant over his absences and failing to report them properly at an early stage. This gave the claimant a false sense of security over attendance. However, the claimant was given a chance to improve when his attendance record was challenged. However, the respondent did not establish and has not shown to me that the claimant was incapable of performing his duties when present. The respondent’s investigations did not include exploring medical issues, because they were never raised by the claimant at the relevant time. The issue of the respondent having to wait a reasonable length of time longer for the claimant to improve was not an issue because the claimant was fit for work at the time the decision was made to dismiss. Therefore, I conclude, that the respondent has not established the potentially fair reason for dismissal in capability, it is conduct, and for the reasons I have already explained it was unfair based on that ground.[40]I find that the claimant was unfairly dismissed at this stage of the analysis. I do not therefore need to go to the last part of the test, involving the range of reasonable responses in relation to the sanction of dismissal. Had I been required to so then I would have determined that dismissal was not within the range of reasonable responses. Mr Williams’ and Ms Stacinskaite’s thinking was not transparent. There was considerable overlap and confusion between gross misconduct and misconduct, conduct and capability. All these things contributed to my conclusion the outcome of dismissal was a rushed one, which contributed to the unfairness. I am conscious of the potential error on my part of falling into the trap of "substitution" and especially over the penalty in dismissal; but I did not have to go that far in my analysis, given the point where I found the dismissal unfair.[41]In coming to my conclusions in the case I had regard to how the witnesses presented to me. I will deal with Mr Williams first. I found that he was open and honest. He was credible. He was able to see where things had gone wrong and accepted that some mistakes had happened. He got himself into a bit of a bind at the point of dismissal, and not entirely down to him, with confusion in the paperwork over gross misconduct and dismissal without notice, and conduct concerning events which warranted dismissal with notice. HR support in meetings would have helped him. However, he started off trying to help the claimant and granted various applications from the claimant which had not gone through the proper procedure for absence to be paid for them. This enabled the claimant to be paid for holidays when absent. And of course, Mr Williams had volunteered to drive to the claimant’s home to collect him and then take him back after the shift on 24 December 2022. The respondent had granted the claimant’s application to go to the night shift from the day shift to cater for his change in social circumstances in July 2022. Unfortunately, Mr Williams found the claimant uncooperative in the face of warnings given and decided to take action against him. I conclude that Mr Williams got wound up over the claimant’s poor behaviour and he lost sight of some of the requirements involved in a fair process. This caused mistakes to happen. Some things were put right, and the claimant was paid his notice money and had confirmation that he was dismissed for conduct rather than gross misconduct. In the end Mr Williams conceded that there seemed to have been a system failure in that he mistakenly believed that the claimant had not been at work or been in touch on 4 May 2023. He had received a message that the claimant had not attended work. When we looked at page 150 in the bundle this showed the claimant had worked for 4 days and was given holiday pay for 1 day. Mr Williams conceded that he was mistaken. Although the payslip is for the period to 12 May 2023, the claimant worked a week in hand. In his frustration with the claimant the process was rather rushed in the end, and corners were cut, for example where Mr Williams decided to undertake some investigation and then go straight to disciplinary. It would have been far better to have stood back, and even let someone else take responsibility for the investigation or the disciplinary hearing.[42]I now turn to the claimant. Unlike Mr Williams, the claimant could not see another view of things and would not concede that he was wrong in any aspect. He had a very blinkered approach. He had the habit of blaming everybody else. During his cross-examination there were questions which he simply did not answer; but rather he went off at a tangent and answered a different question. When this was pointed out to him, he still did not answer. This conduct was present during the interviews at work. His work with the respondent was not a priority in his life. He did not work hard to keep his job. He found other things were a priority. When he was refused permission to take 24 December 2022 as a holiday he did not go to work with the respondent. Instead, he went to work for somebody else according to his evidence in chief in his witness statement. In paragraph 8 of the statement, he said: “I had to go to London for urgent work….” When asked about this during the hearing he did not elaborate and said it was “personal”. He changed his mind later: “I had a relative, just like a sister to me, and I went to see her because she was going to Pakistan”. Then, “I went there for a personal affair, my wife was ill.” And later, “The wrong words may have been chosen. I didn’t go to earn some money.” The claimant was highly inconsistent. He did not present as a witness of truth. He was not open and honest. He was not credible. The claimant presented as having a big personality, not afraid to speak out and I find that if he did not agree with something he would challenge it. He complained during this hearing that notes of meetings were inaccurate, and he could not read them when he signed them. I conclude that he knew what he was doing when he signed the notes and had he disagreed with them he would have protested at the time. He denied reading the letters that were sent to him during the process by the respondent and that he did not realise he had to take action. I find this hardly likely, as his wife would have read them and taken the appropriate action on his behalf; and at the very least she would have translated them for him. They are a very close couple, and she has been very supportive of the claimant. The claimant made a number of assertions during the hearing about the respondent having caused his chest infection, but he says nothing about it in his witness statement, and only raised it as an afterthought during the appeal process. If he really believed his working environment caused it, he would have said so loudly and clearly from the outset of his absences. The claimant presented as unreliable and unbelievable.[43]Thus, I concluded that whenever there was a conflict on a material fact between the two witnesses, I preferred the evidence of Mr Williams.[44]I then turned to the issue of contribution. I conclude that the claimant contributed to his dismissal in that he was culpable and blameworthy in failing to use the appropriate reporting method when he was unable to attend at work. This contributed to his dismissal. He knew the procedure, and whether consciously or unconsciously, he failed to observe it on a number of occasions. I find that he was going to do it his way, not the way the respondent wanted him to do; and this I would describe as being “bloody-minded”. I find that it is just and equitable to reduce any award. The claimant’s attitude to the respondent and his work generally was extremely poor. He put his own interests first, including having other work to go to on 24 December 2022. I assessed his contribution to be 50%.[45]As to Polkey, I conclude that the claimant’s contract of employment with the respondent would have ended fairly after 13 weeks. The claimant did not like working for the respondent. There would have been further issues about poor attendance and failure to report absence properly. I conclude that the claimant would have remained uncooperative and unreliable. He would not have changed his ways during this period, and there was a real chance or risk which I assessed at 100% that he would have been fairly dismissed after 13 weeks. I did stand back and look at the case as a whole and seen in context this is just, fair and proportionate.[46]At this point the claimant confirmed through Mrs Butt that he did not wish to seek the remedy of reinstatement or re-engagement in view of my findings on contribution and therefore the remedy rested in compensation.[47]The remedy. In terms of the remedy for unfair dismissal, the basic award is £905.96 which is an agreed amount (2 x £452.98). I award compensation in relation to net salary loss in the sum of £4,991.87 (13 weeks x £383.99). The respondent did not demonstrate that the claimed had failed to mitigate his losses. The pension loss is £452.98 x 3% = £13.58 x 13 weeks = £176.54. For loss of employment rights, the award is £500 making the total sum payable by the respondent £6,574.37. I then deducted 50% for contributory conduct by the claimant, leaving a figure of £3,287.18. I decided it was just, fair and proportionate not to deduct from this sum the payment in lieu of notice the respondent had given to the claimant. If I had done that, I would likely have started the 13 weeks after the notice period. I gave Mr Bidnell-Edwards the opportunity to make any submissions on the point; and helpfully he agreed with my approach to the issue. Signed by ___________________on 9 Sept. 2024