Case No 1305987/2018Venue BirminghamHearing 11th, 12th and 13th March 2020
Between
Mr SW BrewertonClaimantSerco LtdRespondent
Before
Employment Judge ChoudryMr R Ennis (instructed by Solicitor) for claimantMiss R Owusu-Agyei (instructed by Counsel) for respondentDate 14 April 2020
JUDGMENT
The claimant’s claim for unfair dismissal (both ordinary and automatically unfair) fails and is dismissed.
REASONS
[1]The claimant brought a claim for unfair dismissal (both ordinary and automatically unfair on the basis of he had been dismissed for taking part in trade union activities and/or on the basis that he had taken reasonable time off to provide assistance when a dependent fell ill) following the termination of his contract of employment by the respondent on 9th August 2018 by reason of misconduct.[2]The respondent operates a number of refuse contracts for local government including for Sandwell Council which it has operated since November 2010. Evidence and documents[3]I heard evidence from the claimant and for the respondent from Mr John Mason and Mr Mark Sturgeon both Regional Contract Managers.[4]I also had an agreed bundle of some 432 pages as well as an agreed list of issues and a cast list. With one amendment made at the hearing, the chronology was also agreed. At the start of the hearing I indicated to both parties representatives that given the volume of documents it was not my intention to read the bundle in its entirety. I would read the documents referred to in the witness statements and if either party wanted me to read any other documents then they should specifically refer me that document.[5]On the second day of the hearing I was provided with an updated schedule of loss which replaced the one already in the bundle.[6]I also heard a short recording of the claimant’s call to the respondent’s absence management reporting line.
Issues
[7]The issues for the Tribunal to consider were as follows : Automatically unfair dismissal (s99(3)(d) of ERA 1996)7.1 From 29th to 31st January 2018, had the claimant exercised his right to take a reasonable amount of time off to take action which was necessary to provide assistance on an occasion when a dependent fell ill, pursuant to s57A(1)(a) of the Employment Rights Act 1996 (“ERA)?7.2 Did the claimant tell the respondent the reason for his absence as soon as reasonably practicable?7.3 If so, was this the reason or principal reason for his dismissal? Automatically unfair dismissal (s152 TUL(C)RA 1992)7.4 By attending a training course from 5th to 9th March 2018 had the claimant taken part in the activities of an independent trade union?7.5 If so, had he done so at an “appropriate time”?a. Was the training course outside of the claimant’s working hours?b. If not, was it at a time within his working hours at which, in accordance with arrangements agreed with or consent given by the respondent, it was permissible for him to take part in the activities of a trade union?7.6 If so, was this the reason or the principal reason for his dismissal? Ordinary unfair dismissal (s98 ERA 1996)7.7 If the claimant was not automatically unfairly dismissed, was the claimant dismissed for a potentially fair reason for the purposes of section 98(1) and (2) of the Employment Rights Act 1996 (“ERA”), namely conduct?7.8 Was the dismissal fair in accordance with s.98(4) ERA 1996? In particular:- a. Did the respondent have a genuine belief in a set of facts that amount to misconduct? b. Was this belief based on reasonable grounds?c. Did the respondent carry out a reasonable investigation?7.9 If so, was it reasonable for the responsible for the respondent to treat that reason as sufficient to dismiss the claimant in all the circumstances, having regard to equity and the substantial merits of the case.7.10 The claimant relies in particular on the following as grounds of unfairness: a. Did the respondent conduct a fair procedure? b. Did the respondent act fairly in taking into account the previous written warning? c. Was dismissal within the range of reasonable responses? Remedy7.11 If the claimant was unfairly dismissed: a. to what basic award is he entitled to under section 119 of ERA; and b. what compensatory award would be just and equitable in all the circumstances having regard to the loss sustained by the claimant under section 123 of ERA? Was dismissal a sanction within the range of reasonable responses?7.12 In particular: a. Has the claimant reasonably mitigated his losses; b. should any compensatory award be reduced to take account of the chance that the claimant would have been dismissed in any event; c. should any basic and/or compensatory awards (if any) be reduced by reason of the claimant’s contributory fault ?
Remedy
[8]The claimant asserts that his conduct was not sufficiently serious to warrant his dismissal and that the respondent dismissed the claimant as it wanted to dismiss employees such as the claimant who were on more preferential terms and conditions of employment as they had transferred from Sandwell Council to the respondent as a result of a TUPE transfer in 2010.
Facts
[9]I make the following findings of fact :9.1 The claimant commenced employment with Sandwell Council on 17th June 1998.9.2 On 1st November 2010 the claimant’s employment transferred to the respondent pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).9.3 On 1st March 2016 the claimant’s working hours changed to working one month on and one month off to enable him to undertake caring responsibilities. However, his pay was spread out evenly over 12 months.9.4 On 8th November 2017 the claimant was issued with a final written warning for infringing rules relating to working time in relation to daily and weekly rest. On appeal the final written warning was reduced to a first written warning on 22nd January 2018. This warning was for a period of 12 months. Findings in relation to verbal altercation with a member of the public9.5 On 26th January 2018 the claimant was involved in an alleged altercation with a member of the public (Mrs Hartland) whilst undertaking his duties for the respondent. As a result of this, on the same day Mrs Hartland made a formal complaint to the respondent about the claimant’s behaviour. It was alleged that the claimant had called the member of public a “liar” and had put his face close to hers following a dispute about a broken bin lid. Mrs Hartland had requested the claimant’s name from him so that she could report it. Mrs Hartland was upset by the claimant’s behaviour and wanted an apology. As such, she telephoned the respondent and reported the incident on the same day.9.6 The respondent operates a code of conduct policy upon which the claimant received training on 18th February 2016. The respondent takes the code of conduct very seriously. The code stresses that “it is absolutely essential that we maintain the highest standards of behaviour in delivering these services. In our business, values really matter. They matter because our customer and service users have to be able to trust that we will deliver our work with care and pride…”. The code further states “Serco expects everyone to consistently provide the highest standards of customer service and to aim to always do the right thing and never compromise Serco values”. The code explains that the core value of trust is not demonstrated when Serco employees allow disrespectful behaviour and goes on to make it clear that everyone should use appropriate language which respects others and to do everything they can to make a positive difference to customers and communities, In relation to the core value of pride the code makes it clear that employees are expected to develop and maintain great relationships with customers, to be ambassadors for Serco and demonstrate a positive and professional attitude.9.7 The respondent decided that an investigation into the incident was appropriate given its core values and a refuse supervisor with the name of Dave was appointed to look into the matter.9.8 As such a more detailed statement was obtained from the Mrs Hartland on 30th March 2018. Mrs Hartland was informed that the respondent would investigate the matter internally and also apologised to Mrs Hartland on behalf of the claimant.9.9 In her statement Mrs Hartland indicated that there had been a dispute with the claimant as to whether he had broken her bin when it fell over whilst the claimant was emptying the rubbish. When challenged by Mrs Hartland, it was alleged that the claimant put his face into hers and accused her of being a liar which she took exception to. When asked to provide his name the claimant did so and allegedly told Mrs Hartland that “you can report me if you want to”.9.10 The claimant was not informed of the allegations made by Mrs Hartland until 11th April 2018 when he was invited to attend an investigatory hearing on 19th April 2018 to discuss Mrs Hartland’s complaint. This was due to the fact that initially the claimant was absent from work from 29th January to 31st January (see further below) and then from 1st February he was on his one month off working arrangement. The claimant was then on annual leave on 1st and 2nd March, absent from work attending a Unite training course from 5th to 9th March and then absent with sickness absence from 19 - 23rd March, on annual leave from that date to the end of March and had a non-working month during April. As such the only days that the claimant was in work in the period from receipt of the customer’s complaint and 11th April 2018 were the dates from 12th to 16th March 2018. Furthermore, the refuse supervisor Dave also had some sickness absence which coincided with the claimant’s absence meaning that he was not able to progress his initial investigation.9.11 I accept the evidence of the respondent that the claimant did not like to be contacted by the respondent during his month off working arrangements as he felt that contacting him during his time off amounted to harassment. I note that the claimant accepted this during his evidence and indeed refused to attend a proposed disciplinary investigation meeting on 19th April on the basis that it was his nonworking month.9.12 The claimant eventually attended an investigatory meeting on 8th May 2018 with Mr Mark Blades, the respondent’s Waste Services Manager and the claimant’s line manager. The claimant was accompanied by Caren Evans from Unite. At the investigatory hearing the claimant indicated that he did not remember the incident and that he put his face in someone else’s and called them a liar he would have remembered it. The claimant was asked by Mr Blades whether he had every acted in that manner in the workplace to which the claimant replied “to you yes, because you told a lie”.9.13 Following the conclusion of the investigation at which it was concluded that there was a case to answer in relation to the verbal altercation with Mrs Hartland and the other matters set out below, the claimant was provided with a copy of Mr Blades’ investigation report which had appended to it copies of the initial note of complaint, notes of communications with Mrs Hartland together with her formal letter of the complaint.9.14 At the disciplinary hearing on 23rd July 2018 at which the claimant was accompanied by Bob Collins from Unite the claimant again indicated that he had no recollection of the incident and if the incident had occurred as described he would have remembered it.9.15 At the appeal hearing on 23rd August 2018 at which the claimant was accompanied by Sharon Harding from Unite the claimant again re-iterated that he could not remember the incident.9.16 I note that in his witness statement the claimant indicated that he did not accept that he had been rude to Mrs Hartland or that he had done anything wrong.9.17 However, following his dismissal and the conclusion of the disciplinary process the claimant has produced a letter from Mrs Hartland dated 12th July 2019 in which she says the claimant “..has since apologised [sic] to me and I have accepted that and wish him well” and that she feels the matter is resolved as far as she is concerned.9.18 During the cross examination the claimant indicated that he had taken advice and had now apologised to Mrs Hartland, that at the time he could not remember the incident as he dealt with a lot of people and had requested more information about the incident. However, the claimant accepted during cross examination that he had received the investigation report which had Mrs Hartland’s letter attached to it. The claimant also had details of the route the incident had occurred on and the street upon which Mrs Hartland lived. As such, I am satisfied that the claimant could have apologised earlier before he was dismissed either by contacting Mrs Hartland directly or via the respondent. However, he did not do so. Findings in relation to carers leave9.19 On 29th January 2018 the claimant became absent from work.9.20 The respondent operates an automated absent management reporting system. This was introduced with effect from 5th September 2016. From this date employees were required to notify all absences (including those for sickness, emergency, dependant and compassionate reasons) through a dedicated absence reporting line. The system requires employees to key in their employee number on the telephone keypad, answer a series of “yes or no” questions using 1 for “yes” and 2 for “no”. It also requires employees to leave a voicemail for their line manager with the reason for absence and any other useful information such as any time that the employee will be unavailable for a call back. The employee should also confirm the most appropriate telephone number for them to be contacted back on. The claimant provided a letter in the bundle which he received in August 2016 from the respondent setting out all this information. This letter makes it clear that following the reporting of an absence an employee’s line manager will call them back within 24 hours to discuss their wellbeing. Employees are also expected to call the absence management line on their return to work to close down their absence.9.21 The respondent has produced screen shots of the data on their system which show that the claimant called the absence management reporting line at 5.36am on 29th January 2018 with the claimant indicating an expected return date of 31st of January 2018. An audio note was also added by the claimant. This audio note was played to me at the hearing and the claimant is heard saying the words “carers leave” and nothing else.9.22 The screen shot shows Mr Steven Wilkes, Refuse Supervisor and the claimant’s immediate line manager tried to call the claimant at 11.15am with the call status being recorded as “No Answer”. Two attempts were made at this time but there was no answer and the claimant’s mobile did not divert to answerphone so Mr Wilkes was not able to leave a message.9.23 Mr Wilkes called again the following day and left a message for the claimant to call him back at 8.01am on 30th January 2018. It was noted on the system that several attempts had been made to the claimant to no avail without an option to leave a message.9.24 The claimant did not return to work on 31st January 2018. As such at 9.08am Mr Wilkes marked the claimant down as absent and noted on the system that the claimant had “not followed procedure, not entitled to carers leave as requested, not answered phone when done call backs both through the system and from the supervisors mobile.”9.25 On 1st February 2018 the claimant called the absence management line at 8.14am to close down his absence. He was noted as having returned to work on the system. He did not, in fact, return to work as it was the claimant’s nonworking month.9.26 The respondent does not operate a carers leave scheme. Instead it operates an unplanned absence procedure which incorporates the respondent’s procedure on dependents leave. The respondent’s procedure provides that employees may take a reasonable amount of unpaid leave to take necessary action to provide assistance on an occasion when a dependent falls ill and that the actual amount of unpaid leave will vary dependent upon the nature of the emergency but it is not envisaged to exceed one or two days in most cases. The respondent’s procedure makes it clear that it is the employee’s responsibility to not only notify their manager of the unplanned absence using the absence reporting system but also to keep their line managers informed throughout the period of absence. The procedure also makes it clear that managers are responsible for making call backs to employees during the period of absence. From the respondent’s perspective it is expected that an employee wishing to take unpaid dependent’s leave should communicate with their line manager to explain that why such leave is being requested so that it can be authorised if appropriate.9.27 The claimant also had the benefit of a separate carer leave scheme which was operated by Sandwell Council. Following the TUPE transfer to the respondent, the respondent took over the provision of the Sandwell carers leave scheme.9.28 The Sandwell scheme provides that “any carers leave must be monitored and approved by the employee’s line manager prior to reclaiming the leave”.9.29 As the claimant’s absence had not been approved or authorised it was initially treated as unauthorised absence by the respondent.9.30 On 5th March 2018 the claimant emailed Mr Wilkes to complain about not being paid for his absence from 29th to 31st January 2018 indicating that he had been using the Sandwell carers leave. In his email the claimant indicated that he was attaching a copy of the paperwork establishing he was a member of the carers scheme to that email and suggesting that the provided documentation would satisfy the respondent’s requirement in order to pay hm for three days. However, no paperwork was, in fact, attached to the claimant’s email and Mr Wilkes requested a copy of this paperwork. Mr Wilkes also advised the claimant that carers leave had to be agreed with the employee’s line manager and then put in writing. A copy of this consent was required. In addition, accrued hours for carers leave on any one day had to be signed off by the supervisor and the necessary records need to be provided to Mr Wilkes. As far as Mr Wilkes was concerned until this evidence was produced then the claimant would remain on unpaid absence.9.31 On 12th March 2018 the claimant was invited to attend an investigatory meeting on 15th March 2018 with Mr Mark Blades to deal with the issue of his absence from work from 29th to 31st January and his attendance at a trade union course at the beginning of the month (see further below). Mr Blades investigation did not include the complaint by Mrs Hartland as at this point it was within the remit of another manager (paragraph 9.7 to 9.10 above). However, the claimant indicated that this did not give him enough time to organise a representative. On 15th March 2018 the claimant sent a text message to Mr Blades indicating that he had been advised not to attend the meeting on 15th March. The claimant was asked to provide an alternative date by Mr Blades. The claimant was then on sick leave from 19th to 29th March 2018. Mr Blades was, himself, on holiday from 23rd March to 16th April. However, during his during his holiday Mr Blades liaised with the HR case manager and it was agreed that a meeting would be arranged for Mr Blades to meet with the claimant on his return from holiday.9.32 As such, on 11th April Mr Wilkes sent an email to the claimant inviting him to an investigatory meeting with Mr Blades on 19th April. At this stage is was decided that the remit for Mrs Hartland’s complaint be passed to Mr Blades and it was referred to as one of the allegations to be discussed with Mr Blades.9.33 However, on 18th April the claimant emailed Mr Blades indicating that he would not be attending the meeting on 19th April but he was prepared to attend an investigatory meeting on 8th May. In his email to Mr Blades the claimant made it clear that he considered being contacted during his nonworking month as management harassment and bullying.9.34 In the event the investigatory hearing with the claimant took place on 8th May. During the investigatory hearing the claimant indicated that he had called up the absence management reporting line and asked to use some of the carers hours he had to care for his son.9.35 The voice record of the call the claimant made demonstrates that the claimant did not ask to use his banked hours to care for his son. All the recording says is “carers leave”.9.36 During the course of the investigation the claimant provided Mr Blades with a copy of the Sandwell carers leave slip which showed that as at 2009 he had 48 hours of banked carers leave and had not either taken any leave or banked any leave since 2009.9.37 The claimant also indicated in the investigatory hearing that he had sent the Sandwell carers leave card to Mr Smith and would provide a copy of the same to Mr Blades but he did not.9.38 During the disciplinary hearing the claimant asserted that the Sandwell carers scheme provided that he did not have to give notice to take time off for carers leave and stated “if I wake and my child is ill then I take carers leave”. The claimant denied that he was obliged under the Sandwell scheme to obtain permission for carers leave.9.39 In his letter of appeal the claimant indicated that the requirement to obtain prior approval as set out in the Sandwell carers scheme only related to the point at which the hours were banked and not when leave was taken. The claimant asserted that an employee simply informed the respondent that it they needed to take carers leave. The claimant also asserted that no one had called him back after he had rung the absence management line on 29th January 2018.9.40 During cross examination the claimant alleged that there had been occasions in the past when he had not been called back on previous occasions but could not provide any specific evidence of this. I am satisfied on the evidence before me that the respondent made several attempts to contact the claimant during the period of his absence all to no avail.9.41 When the recording of the claimant’s call to the line was played to the claimant at the hearing the claimant asserted that he had said more than “carer’s leave” when he had rung to report his absence but he could not recall the precise words he used and accepted that memories could fade after a period of two years. In fact, the claimant went on to say that he could not remember the words used. I am satisfied, on the evidence before me, that the claimant did not say anything other than “carers leave” when he rang to report his absence on 29th January.9.42 The respondent’s absence management system applies across the whole of its organisation and there is no specific recognition within the absence management system of the Sandwell carers leave scheme. From the respondent’s unplanned leave perspective it is expected that an employee wishing to take unpaid dependent’s leave should communicate with their line manager to explain the reasons for the leave so that it can be authorised if appropriate.9.43 During cross examination the claimant also seemed to accept that he did not have an unfettered right to use his banked hours accepting that it was “not up to me”. He took the leave and hoped to be paid. He accepted that it was the respondent’s decision as to whether he would be paid and he also accepted that he needed approval to use the Sandwell carers leave scheme. Attendance at trade union course 5-9th March 20199.44 The respondent has a Recognition Agreement with Unite which is dated 28th February 2011 and which provides at clause 4 ii that the respondent will be provided with at least one month’s notice in writing of any change to or appointment of elected representatives and clause 10 provides that the respondent will support with reasonable paid time off for relevant courses for trade union representatives. Clause 9 of the collective agreement makes it clear that the respondent’s approval is necessary for paid leave of absence to be permitted for trade union duties. Clause 14 of the collective agreement provides that local union representatives who are asking for time off should give “at least a few weeks’ notice to management of nominations for training courses”.9.45 On 28th September 2017 the respondent received an email from Unite’s Regional Officer Peter Malbasa notifying it that an election had been held in June 2017 for the claimant to be elected as an additional Unite shop steward would need to be rerun. In his email Mr Malbasa states “it appears that the election was not run in line with Unite policy and process; therefore at present Bill will not be able to act in any formal capacity…I apologise for this condition”.9.46 During the course of the Tribunal proceedings the claimant produced a copy of a work place representative credential signed by Mr Malbasa indicating that the claimant was an authorised Shop Steward/Workplace Representative of Unite and was elected to represent its members, This credential was effective for the period 22nd June 2017 to 30th June 2018. I am satisfied on the evidence before me that such credentials were issued to the claimant following his election in June 2017 but this was overtaken and ceased to have effect following Mr Malbasa’s email of 28th September 2017 in which he indicated that the June election would need to be rerun.9.47 The claimant has also disclosed a letter sent to him from Unite dated 25th January 2018. This letter began by congratulating the claimant on his recent election as workplace representative and then by inviting him to attend a Workplace Representative Introductory Certificate course from 5th to 9th March 2018.The letter stated “...please ensure that your employer has agreed to your paid release to attend the course. If you have any problems obtaining paid release you should contact your full-time officer”. The letter also stated in underlined text “Please also show this letter to your employer to ensure paid release, as final confirmation letters will not be sent out until ten days before the course commences”. The claimant did not provide the respondent with a copy of this letter.9.48 A month later, on 25th February 2018 the claimant emailed Mr Gary Smith, Contracts Manager and the claimant’s line manager. The claimant attached to this email a letter that he had received from Unite confirming his attendance at the course on 5th to 9th March. In his email the claimant indicated “Please find attached a letter from Unite. As you can see the Union have advised I secure paid release. Can you get back to me if there is a problem”.9.49 The following day Mr Smith forwarded the claimant’s email to Mr Brian Rickers, the Regional Unite Officer indicating that the respondent still had no notification from Unite. Mr Rickers was asked to “advise”. Mr Rickers responded with “…could we hold all training modules due to Unite restructuring of Serco Membership all elections for shop stewards will take place within the next two weeks then I will notify you in writing, appreciated.”9.50 On 27th February 2018 Mr Smith informed the claimant that all trade union training had been put on hold as per the email from Mr Brian Rickers, the Unite Regional Officer. The claimant was informed that the training would not go ahead and that if he required any further information then he should speak to Mr Rickers.9.51 On 5th March 2018 the claimant did not attend work and at 21:44 he emailed Mr Smith (and copying in Mr Blade) to indicate that Mr Rickers’ information was “incorrect”, that the course was running and the Union expected him to attend the Unite training course. Mr Smith forwarded the email to Mr Rickers early the following day asking Mr Rickers if he wanted to reply to the claimant indicating “we will not be allowing Bill to attend”.9.52 When Mr Blades saw the email from the claimant he emailed the claimant at 7.13am on 6th March 2018 indicating that he had been informed by the supervisors that he had not attended work on 5th and 6th March and that he was being marked as absent as there was no log on absence manager. The claimant was requested to come and see Mr Blades. The claimant responded to Mr Blades at 7.48am indicating that he was unable to see Mr Blades until later that day as he was currently on his way to the union training course and that he had advised Mr Smith about the course the previous week. Also on 6th March Mr Smith emailed the claimant at 1.09pm and copied in Messrs Rickers and Blade. In his email Mr Smith reminded the claimant of the email which he had sent on 27th February 2018 in which the claimant had been informed that the training was not going ahead. Mr Smith pointed out that the claimant had not made any contact with Mr Rickers and that he was disappointed that the claimant had not returned to work. The claimant was informed that unless Unite decided to reimburse the claimant the respondent would not be paying him. The claimant was advised that as far as the respondent and Unite were concerned the claimant was not recognised by either organisations as an elected member /workplace representative and therefore he had no formal involvement as a steward. The claimant was informed in no uncertain terms that he was required to return to work the following day “without fail” and that he should not attend any further courses or meetings without Mr Smith’s permission. Mr Smith’s email was followed by a call from Mr Rickers. During this call which by all accounts was a heated one Mr Rickers told the claimant to return to work. The call became agitated and the claimant hung the phone on Mr Rickers.9.53 The claimant did not come to see Mr Blades on 6th March as requested or, indeed, the following day, As such on 8th March 2018 Mr Smith emailed Mr Rickers at 1.42pm indicating that he was really concerned about the claimant’s absence as he had not returned to work despite warnings from both Mr Rickers and Mr Smith. Mr Rickers was asked whether the claimant was still on the union course. Mr Rickers confirmed that the claimant was still on the course. When Mr Smith asked Mr Rickers was still on the course despite the repeated requests for the claimant to return to work by the respondent and by Mr Rickers he responded “Because he does not take instructions”.9.54 In light of this Mr Blades wrote to the claimant on 8th March. In his letter Mr Blades indicated that despite being told by Mr Rickers that he was not required to attend the union course the claimant had failed to return to work on 7th March as requested. As the claimant did not have the respondent’s permission to attend the course he was deemed to be “absent without leave”. The claimant was asked to make contact with Mr Blades or via the absence line. The claimant was informed that such contact should be made straight away and in any event by the following day. The claimant was advised that if he did not make contact by the close of play on 9th March 2018 then this could result in disciplinary action being taken against him.9.55 The claimant did not make contact with Mr Blades as requested. As such by a letter dated 12th March the claimant was invited to attend an investigation hearing on 15th March 2018 to discuss his unauthorised absences from work on 29th-31st January 2018 and 5th-9th March 2018, his failure to follow management instructions to attend the workplace on 6th and 7th March and attending the Unite course without permission.9.56 On 9th March 2018 a further election took place at which the claimant was elected trade union representative. I do not accept the evidence given by the claimant that following the June 2017 election which was deemed to be invalid that there was a further election in October or November 2017 at which he was elected a trade union representative. Whilst there is evidence to suggest that the claimant was asking when the re-election would take place during this time I am satisfied from the documentation that the actual re-election did not take place until 9th March 2018. I note an email from the union dated 25th February 2018 that an election for Shop Stewards and New Branch positions would take place at 2.30pm on 9th March and the respondent was asked to make available the main conference room for this purpose. Furthermore, the claimant did not receive his credentials as an elected representative until 11th April 2018.9.57 The claimant advised Mr Blades on 13th March 2018 that he would not be able to attend the investigatory hearing arranged for 15th March 2018 as this gave him insufficient time to arrange representation.9.58 On 11th April 2018 the claimant was invited to attend attended an investigation meeting on 19th April 2018 to deal with the matters identified above and also the altercation with Mrs Hartland. The claimant advised Mr Blades on 18th April that he would be attending the hearing on 19th April as it was his non-working month and he took the viewing that arranging meetings in his non-working hours amounted to management bullying and harassment.9.59 In the event the investigatory hearing took place on 8th May 2018. During the investigatory hearing the claimant indicated that he had tried to call Mr Rickers before going on the course but he got no response. Given the phone records provided by the claimant I do not accept the claimant’s assertion that he tried to call Mr Rickers before going on the course. The claimant’s response to questions put to him at the investigatory hearing were evasion with many questions being answered with “I can’t remember” or “I will have to check my emails”. The claimant’s evidence during the hearing was equally vague at times. Disciplinary hearing9.60 On conclusion of his investigation Mr Blades decided that the claimant had a case to answer. As such on 22nd May the clamant was invited to attend a disciplinary hearing on 31st May 2018. The claimant was advised of the allegations against him and further advised that the respondent took the view that the allegations were of a serious nature and could amount to gross misconduct and therefore could result in his summary dismissal. The claimant was advised of his right to be accompanied and provided with the investigatory report and the disciplinary policy. In the event the disciplinary hearing did not take place until 23rd July 2018 at the hearing was re-scheduled 3 times at the claimant’s request.9.61 The disciplinary hearing was conducted by Mr Mason, the General Contract Manager. The claimant was accompanied by Mr Bob Collins from Unite the union. At the start of the hearing the claimant was asked if he had sufficient time to prepare. The claimant confirmed that he had but suggested to Mr Mason that he had already made his decision which Mr Mason assured him that he has not. Mr Mason went through each of the allegations one by one and gave claimant the opportunity to respond. In the event the disciplinary hearing was adjourned to enable Mr Mason to make further enquiries in relation to the Sandwell Carers Leave scheme and the intention being to reconvene the hearing for Mr Mason to be able to deliver his decision.9.62 However, sadly the claimant was diagnosed with prostrate cancer and notified Mr Mason of his diagnosis by email on 26th July 2018. The claimant notified Mr Mason that he did not wish to attend a reconvened hearing and that the disciplinary outcome should be conveyed to him in writing.9.63 Mr Mason took the view that the customer complaint was the most serious issue and a clear breach of the respondent’s code of conduct. Had this been the only issue Mr Mason’s evidence was that he would have issued a final written warning. In relation to the carers leave Mr Mason was satisfied that the claimant had not obtained the necessary authority for this period of absence and his evidence was that has this been the only conduct allegation he would have issued the claimed with a written warning. In relation to the claimant’s attendance at the Unite training course Mr Mason concluded that the claimant had deliberately ignored Mr Smith’s instruction on 27th February that his attendance on the course was not authorised. Mr Mason’s evidence was that has this been the only conduct issue he would have issued a warning. A written warning would also have been issued in relation to the failure of the claimant to follow instructions from Messrs Blade and Smith to return to work. However, taking all the conduct allegations into account in their totality Mr Mason was of the view that notwithstanding his length of service the claimant’s conduct was sufficiently serious as to justify his dismissal as the claimant had shown a wholly unacceptable disregard for the respondent’s procedures and communications and instructions from his line managers. I am satisfied from the evidence before me that Mr Mason would have dismissed the claimant even if he did not have a final written warning on his record as the 5 allegations were sufficiently serious as to merit his dismissal.9.64 Mr Mason informed the claimant of his decision to dismiss (effective 9th August) by a letter written on the same date. The claimant was paid in lieu of his notice, accrued holiday and carer’s leave. The claimant was informed of his right of appeal which he duly exercised. Appeal hearing9.65 In his letter of appeal the claimant alleged, inter alia, that he could not recall the incident with Mrs Hartland and that the respondent had accepted the word of one resident over his word and without seeking statements from other members of the crew. In relation to the carers’ leave the claimant alleged that there had been a simple misunderstanding on his part as to the rules of the scheme and there had been no deliberate attempt to misrepresent the rules of the scheme.9.66 The claimant duly attended an appeal hearing on 23rd August 2018. The appeal was conducted by Mr Mark Sturgeon, Regional Contract Manager. The claimant was accompanied by a Unite regional union representative. In relation to the carer’s leave it was alleged, inter alia, that the respondent’s managers had not made any contact with the claimant. The claimant also denied being informed not to attend the trade union course. He also indicated that he had no memory of the incident with Mrs Hartland but indicated that he would apologise. After hearing the representations made by and on behalf of the claimant Mr Sturgeon adjourned the hearing so that further investigations could be undertaken in relation to the claimant’s interaction with the absence line and the recording listened to. Enquiries were also made as to why the claimant was not informed of the complaint by Mrs Hartland until the letter of 11th April inviting the claimant to an investigatory hearing.9.67 In relation to allegation 1 Mr Sturgeon concluded that there was sufficient evidence for the respondent to hold a reasonable belief that the claimant had been involved in an altercation with a member of the public. Furthermore, the delays in advising the claimant of the complaint was influenced by the claimant’s working pattern and did not have a material impact on the outcome. In relation to the carer’s leave Mr Sturgeon was satisfied that the Sandwell scheme required an employee to obtain prior permission from line management before taking such leave. Mr Sturgeon was also satisfied that the respondent’s managers made three attempts to contact the claimant to no avail. Mr Sturgeon was also satisfied that the claimant had been clear instructions not to attend the trade union course but disregarded those instructions. He had also disregarded the instructions from both Messrs Smith and Blades to return to work whilst on the course. In light of this the claimant was informed by Mr Sturgeon by a letter of 13th September 2018 that he had decided to uphold the decision to dismiss him.
Applicable law
[10]Section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides:(1) For purposes of [Part X of the Employment Rights Act 1996] (unfair dismissal) the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a) was, or proposed to become, a member of an independent trade union, [...] (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, [...]….(2) In subsection [(1)] “an appropriate time” means — (a) a time outside the employee’s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union [ or (as the case may be) make use of trade union services]; and for this purpose “working hours” , in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.]…. (4) References in this section to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union or of one of a number of particular branches or sections of that trade union [...]…. (5) References in this section– (a) to taking part in the activities of a trade union, and (b) to services made available by a trade union by virtue of membership of the union, shall be construed in accordance with subsection (4).[11]Section 99 of the Employment Rights Act 1996 provides :(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.(2) In this section “prescribed” means prescribed by regulations made by the Secretary of State.(3) A reason or set of circumstances prescribed under this section must relate to— ……. (d) time off under section 57A;[12]Section 57A provides:(1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary— (a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted, (b) to make arrangements for the provision of care for a dependant who is ill or injured, (c) in consequence of the death of a dependant, (d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or (e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.(2) Subsection (1) does not apply unless the employee— (a) tells his employer the reason for his absence as soon as reasonably practicable, and (b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.(3) Subject to subsections (4) and (5), for the purposes of this section “dependant” means, in relation to an employee— (a) a spouse [ or civil partner], (b) a child, (c) a parent, (d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.(4) For the purposes of subsection (1)(a) or (b) “dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee— (a) for assistance on an occasion when the person falls ill or is injured or assaulted, or (b) to make arrangements for the provision of care in the event of illness or injury.(5) For the purposes of subsection (1)(d) “dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee to make arrangements for the provision of care.(6) A reference in this section to illness or injury includes a reference to mental illness or injury.[13]As the claimant has sufficient service to bring a claim for ordinary unfair dismissal following the Court of Appeals decision in Maund v Penwith District Council [1984] IRLR 24 it is for the respondent to show the reasons for dismissal in relation to the claims for automatically unfair dismissal.[14]As was pointed out in Brennan and another v Ellward (Lancs) Ltd [1976] IRLR 378 an employment tribunal will have to consider all the facts and acts relied on as constituting activities and decide whether, as a matter of common sense, these should be regarded as trade union activities. It may be relevant to consider whether the employee carrying out the activities is a trade union representative before deciding whether they were carrying out trade union activities.[15]Furthermore the activity must take place at an “appropriate time”. Effectively, this means outside the employee’s working hours or during an agreed time within the employee’s working hours. Agreement can be express or implied through custom and practice.[16]Section 98 (1) Employment Rights Act 1996 provides that 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 principle reason for the dismissal). (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. A reason falls within the subsection if it – ( b) relates to the conduct of the employee,[17]Section 98(4) provides that 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 reasons shown by the employer) -(a) depends on whether in the circumstances (including the size and administrative resources of the employers 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]The guidelines set out in the case of British Home Stores Limited -v- Burchell [1978] IRLR 379 applies to this case in that the test to be satisfied is that:-• The respondent honestly believed that the claimant was guilty of the misconduct alleged;• The respondent had reasonable grounds on which to sustain that belief; and• The Respondent had carried out an investigation that was reasonable in the circumstances.[19]The Tribunal must finally consider whether dismissal was a reasonable sanction for the alleged misconduct. In determining whether the respondent’s decision to dismiss for conduct is reasonable pursuant to Section 98(4) of the ERA, the Tribunal is assisted by the band of reasonable responses approach which is proved in the case of British Leyland (UK) Limited -v- Smith [1981] IRLR 91. It was stated that:- “the correct test is: was it reasonable for the Employer to dismiss [the Employee?]. If no reasonable Employer might reasonably have dismissed him, then the dismissal was unfair. But if a reasonable Employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all cases, there is a band of reasonable responses within which one Employer might reasonably take one view whereas another might reasonably take a different view”.[20]The Tribunal cannot substitute its own decision for that of the Respondent (affirmed by the Court of Appeal in Sainsbury’s Supermarkets Limited -v- Hit [2003] IRLR 23 even if it believed that the decision to dismiss was harsh in the circumstances,. The dismissal will be fair unless the respondent’s decision to dismiss was one which no reasonable employer could have reached.[21]The case of Polkey –v- A E Dayton Services Limited 1987 IRLR 503 HL indicates that generally an employer will not have acted reasonably in treating a potentially fair reason as a sufficient reason for dismissal unless or until it has carried out certain procedural steps which are necessary, in the circumstances of that case, to justify the course of action taken. In applying the test of reasonableness in Section 98 (4) the Tribunal is not permitted to ask whether it would have made any difference to the outcome if the appropriate procedural steps had been taken, unless doing so would have been “futile”. Nevertheless, the Polkey issue will be relevant at the stage of assessing compensation. Polkey explains that any award of compensation may be nil if the Tribunal is satisfied that the Claimant would have been dismissed in any event. However, this process does not involve an “all or nothing” decision. If the Tribunal finds that there is any doubt as to whether or not the employee would have been dismissed, the Polkey element can be reflected by reducing the normal amount of compensation accordingly.[22]Tribunals are also obliged to take the provisions of the ACAS Code of Practice on Discipline and Grievance Procedures 2009 into account in that it sets out the basic requirements of fairness which are applicable in most cases of misconduct.[23]Section 123(6) of the ERA states: “where the Tribunal finds dismissal was to any extent the cause or contributed to by any action of the complainant, it shall reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding”.[24]Section 13 (3) of the ERA provides: “where the total amount of wages paid on any occasion by an employee to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.”
Conclusions
[25]In reaching my conclusions I have considered all the evidence I have heard and considered documents to which I have been referred. I have also considered the oral submissions made by and on behalf of the parties.[26]Turning firstly to the issue of the reason for the claimant’s dismissal. I do not accept the claimant’s assertion that he was dismissed for taking part in the activities of an independent trade union namely his attendance at the union training course from 5th to 9th March 2018. In reaching this conclusion I note that the claimant was not an elected trade union official at the time he attended the course. Indeed, the election did not take place until the final afternoon of the course and the results confirmed almost a month later on 11th April. Furthermore, the training course did not take place at an “appropriate time”. The training course was within the claimant’s working hours and he was told repeatedly that he did not have permission to attend the course by Messrs Smith, Blades and even Mr Rickers, Unite’s regional officer.[27]I also do not accept the claimant’s assertion that his dismissal was automatically unfair as he was dismissed for exercising his right to take a reasonable amount of time off to take action which was necessary to provide assistance on an occasion when a dependent fell ill. Ms Owusu-Agyei for the respondent asserts that the claimant has failed to satisfy the test set out in section 57A(2)(a) as he did not tell the respondent that his son was ill and simply saying “carers leave” was not sufficient and that I should not accept the claimant’s assertion that he said more that “carers leave” when he rang the absence line. As indicated above I do not accept the claimant’s assertion that he said more than “carers leave” when calling the respondent. I am also satisfied that the claimant did not inform the respondent that his son was ill. As such, I do not accept that the claimant fully explained his reasons for absence. Nor do I accept the claimant’s assertion that he was dismissed for taking time off to care for a dependent.[28]Based on the evidence before me and the findings I have made I am satisfied that the reason for the claimant’s dismissal was conduct due to the claimant(1) being involved in a verbal altercation with a member of the public;(2) the claimant’s absence from work on 29th-31st January being unapproved due to the respondent being unable to make contact with the claimant despite repeated attempts to make contact him. The claimant knew that a manager would be calling him after he had telephone the absence line but did not leave an appropriate number for the respondent to call not did he return the calls made to him. As such the claimant’s absence was unauthorised;(3) the claimant attending a trade union course which was not approved by the respondent;(4) failing to adhere to a management instruction to return to work on 5th March 2018; and(5) failing to adhere to a management instruction to return to work on 6th March.[29]I am therefore satisfied that the respondent had a potentially fair reason for dismissal under Section 98(2) of the Employment Rights Act 1996 and that the dismissal was not due to the claimant taking part in trade union activities and/or for exercising his statutory right to take time off to provide assistance when a dependent fell ill. I also do not accept the claimant’s assertion that the respondent wanted to get rid of him due to the fact that he had transferred over to the respondent’s employment on more favourable terms nor has he produced any evidence in support of this assertion.[30]The first issue is whether the respondent followed a fair procedure. In this particular case, whether the respondent had reasonable grounds for holding a belief that the claimant had committed an acts of misconduct and having conducted as much investigation into the circumstances as was reasonable.[31]I am satisfied that the investigation was a thorough as the circumstances warranted. The claimant points to the delays in bringing the altercation with Mrs Hartland to his attention. However, I accept that delays were in part due to the claimant’s various absences and his reluctance to progress matters on his non-working months. I note that the claimant further asserts that his colleague should have been interviewed in relation to this incident. However, given the claimant’s acceptance during cross examination that an altercation had occurred and his subsequent apology to Mrs Hartland I am not clear what the claimant’s colleagues would have been able to add to his defence.[32]The respondent agreed to re-arrange the investigatory and disciplinary hearings at the claimant’s request and both Messrs Mason and Sturgeon undertook further investigations into points raised with them during the disciplinary and appeal hearings.[33]I conclude in all the circumstances that a fair procedure has been followed by the respondent and that dismissal was in the bands of reasonable responses given the number of misconduct issues. In the circumstances, I am satisfied that the dismissal is a fair and reasonable one taking into account equity and the substantive merits of the case. The claimant’s complaint of unfair dismissal (both ordinary and automatically unfair) therefore fails and is dismissed.