Mr B Pulendrathasan v Professional Systems Integrators Ltd: 1600381/2017

EMPLOYMENT TRIBUNALS

Case No 1600381/2017

Venue Carmarthen

Hearing 26 February 2018

Between

Mr B PulendrathasanClaimant

Professional Systems Integrators LtdRespondent

Before

Employment Judge NW Beard

Mr R Johns (instructed by Counsel) for respondent

Date 2 June 2018

JUDGMENT

[1]The claimant’s claim of unfair dismissal within the meaning of Section 98(4) of the Employment Rights Act 1996 is well founded.

[2]The claimant’s claim of breach of contract is well founded.

[3]The respondent is ordered to pay to the claimant the sum of £1030.38 calculated as set out below. AWARD Basic Award £172.80 x 3 weeks @ £172.80 £518.40 Compensatory Award Loss of earnings 1 week @ £170.66 net £170.66 Breach of contract notice pay 2 weeks @ £170.66 net £341.32 Sub Total Compensatory Award £511.98 Total Award £1030.38

REASONS

[1]This is a claim for unfair dismissal and wrongful dismissal. The respondent contends that the dismissal was for conduct and followed the respondent conducting a reasonable investigation and following an appropriate and reasonable disciplinary process. The claimant contends that the respondent was unreasonable in its investigations and in concluding the claimant was guilty of gross misconduct.

[2]The claimant gave oral evidence on his own behalf. The respondent called oral evidence from Mr and Mrs Thirumagan, who conducted the disciplinary processes and Mrs Poole who was employed in the same role as the claimant. I was also provided with two bundles of documents. In addition to this I watched video recordings from CCTV footage of the claimant at work, there were many hours of this material. In discussion with the parties it was agreed that I would be shown CCTV footage of those aspects of the claimant’s work which the respondent considered showed most clearly misconduct, in this way the evidence was limited to that which placed the respondent’s case at its highest.

[3]The issues as presented by the claimant were: 3.1. In respect of Unfair Dismissal: was the disciplinary procedure outside reasonable procedures: 3.1.1. Was the meeting held on 8 January 2017 a “formal disciplinary meeting”: 3.1.2. Was the claimant provided with all of the evidence the respondent relied upon in making the decision to dismiss: 3.1.3. Was the claimant given an opportunity to appeal; and 3.1.4. Was there sufficient evidence for the respondent to conclude that the claimant ought to be dismissed? 3.2. In respect of wrongful dismissal, the claimant contended that there was insufficient evidence of wrongdoing or gross negligence.

[4]The respondent accepted that the dismissal was procedurally unfair. But contended that had a fair procedure been followed the same result would have been reached. 4.1. The respondent contended that it was a small organisation and necessarily the amount of investigation would be limited by resources. 4.2. That the unfairness was not to provide an opportunity to deal with the investigation and dismissal meeting separately and not warning the claimant of the meeting, but that the evidence gathered would remain the same. 4.3. That the evidence pointed toward dishonesty on the part of the claimant and a reasonable employer could have reached that conclusion. 4.4. That in respect of wrongful dismissal I should conclude that the claimant was dishonest and his conduct amounted to gross misconduct.

The Facts

[5]The respondent is a franchised petrol retailer with an attendant shop. The claimant was employed to serve customers of the petrol station. The claimant commenced employment with a predecessor of the respondent on 23 September 2014. He was dismissed on 8 January 2017. This dismissal was confirmed in a letter dated 10 January 2017 where it was set out that the respondent had concluded from CCTV footage and till records that the claimant was fraudulently using a customer discount scheme.

[6]The claimant was employed, amongst other things, to take payments from customers for fuel purchased. The respondent took part in a scheme where customers would gain a discount by purchasing fuel regularly. This discount was operated by the claimant by means of a card which recorded the number of purchases a customer had made and by applying an increasing discount until a limit was reached after which the customer would start afresh gaining discount.

[7]On 23 October 2016 the claimant was given an instruction in writing from the respondent as follows: “Please treat all cash customers as a mystery shopper. Offer them”. No further instruction on this point is given. The claimant queried this and he understood that he was told to give the discount to all cash fuel purchases. Mr Thirumagan did not actually tell the claimant to do this but I am convinced that he was not as clear in his instructions, which related to mystery customers, as would have been necessary for the claimant to properly understand.

[8]The respondent had concerns about the claimant and so began looking at CCTV footage of him working. The respondent considered that there was evidence that on 27 October 2016 that the claimant cancelled a transaction and yet took cash from a customer (p.34-35) bundle. On the same day the respondent claims that claimant applied a discount in a cash fuel transaction without giving change to the customer. In both cases the respondent contends that this was dishonest conduct on the part of the claimant. The respondent became aware of this in November 2016 but did not confront the claimant with its concerns until January 2017. The only explanation for this delay was that the respondent wished to monitor the situation.

[9]In the late evening of the 8 January 2017, near the end of the claimant’s shift, Mr Thirumagan approached the claimant to discuss the matters. There is some dispute as to what happened during this discussion but the following is clear: the claimant was given no warning of the meeting, the claimant was provided with none of the evidential material gathered, the claimant was not told that he might be dismissed before the start of the discussion and the claimant was no offered the opportunity to have a trade union representative or a colleague attend the meeting with him. Mr Thirumagan dismissed the claimant at the end of this discussion.

[10]On the 9 January 2017 the claimant sent an e-mail to the respondent indicating that he wished to appeal the decision to dismiss. He sent a further e-mail on the same date relating to data protection and the respondent’s use of CCTV footage. The respondent sent a letter to the claimant confirming his dismissal dated 10 January 2017. The letter sets out that the respondent considers that the claimant had was using the discount scheme improperly and handling cash inappropriately. The letter also responded to the request for an appeal stating that it would take place on the 26 January 2017. This date was rearranged to 16 February 2017.

[11]I viewed the CCTV footage which demonstrated, in conjunction with the documents produced by the electronic point of sale system, the following. 11.1. I have seen the claimant deal with a customer who purchases items. The documents at pgs. 34/35 show that the claimant voids a transaction for the items purchased. However, there is no indication of the claimant putting the money anywhere other than the till draw at that point in time. 11.2. The claimant is shown accepting a £20 note, however the corresponding till receipt shows that a discount had been applied. Once again, the claimant is not shown doing anything other than placing the money in the till draw, although it is also clear that the customer does not have a discount card and the claimant did not mark the same. 11.3. The claimant did not fully cash up as part of his responsibilities and therefore would not have been aware of any discrepancies between the end of shift till report and cash he put into the safe. Mrs Thirumagan said that it was her role to check cash against the reconciliation sheets. Mrs Thirumagan said that there were discrepancies (both over and under) from time to time and she did not recollect any time where there were overs on these shifts more than 2 to 3 pence. 11.4. I did not consider, in the absence of records showing reconciliation, that this evidence sufficient for me to conclude that the claimant had taken the sums that related to the matters above from the till.

[12]I came to the conclusion, on the evidence before me and on the balance of probabilities, that it was not possible for me to say that the claimant was acting dishonestly on these occasions. In particular, it appeared to me that the claimant’s explanation to me that he understood that he was required to give discount to all cash customers was genuine. There was an absence of evidence about reconciliation figures and therefore whilst I may have suspicions about the transactions I was shown, that suspicion is not sufficient for me to conclude that the claimant was acting in breach of instructions and dishonestly in applying the discount where no cards were present and

THE LAW

[13]Whilst the claimant has conceded that the dismissal was procedurally unfair I still refer to section 98 of the Employment Rights Act 1996 as it relates to my decision on what was likely to happen if a fair procedure was followed.(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— (b) relates to the conduct of the employee (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.

[14]Guidance has been given to tribunal in dealing with misconduct cases beginning with that given in Burchell v British Home Stores

[1978] IRLR 379

as updated in Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

; ICR

[17]The cases guide tribunals to consider the following: whether the respondent has a genuine belief in the misconduct; whether that genuine belief is sustainable on the basis of the evidence that was before the respondent; whether that evidence was gained by such investigation as was reasonable in all the circumstances of the case. Finally, I must consider whether, in short, the punishment fits the crime, in other words whether dismissal was a reasonable decision to take given the genuine belief and the evidence upon which it was based. The examination the issue of reasonableness is based on the band of reasonable responses; that range includes the lenient and the harsh but fair employer.15. I am also required to consider the so called Polkey question. That requires me to examine, if there has been a procedural defect making the dismissal unfair, what the prospect of the claimant being dismissed in any event would be had the procedural defect been corrected. The tribunal have to approach the issue of what might have happened had the respondent conducted a fair procedure. We have to consider what the chances of the claimant being dismissed in any event were. We are required to use the facts we have found to engage in this exercise of speculation. We must remember that we are exploring questions of chance ranging from 0% to 100%.

16. In Scope v. Thornett

[2007] IRLR 155

the Court of Appeal reminds the tribunal of its need to engage in a certain amount of speculation in the appropriate circumstances, in the words of Pill LJ at paragraph 34: “The employment tribunal's task, when deciding what compensation is just and equitable for future loss of earnings will almost inevitably involve a consideration of uncertainties. There may be cases in which evidence to the contrary is so sparse that a tribunal should approach the question on the basis that loss of earnings in the employment would have continued indefinitely but, where there is evidence that it may not have been so, that evidence must be taken into account.” And at paragraph 36 “The EAT appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal's statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation.” Therefore, as Elias P set out in Software 2000 Ltd v Andrews & Ors

[2007] UKEAT 0533_06_2601

: In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. Analysis 17. I can begin by saying the respondent has conceded that the dismissal was unfair because of procedural failings. This concession was made entirely properly by counsel, the way in which the claimant was dismissed was clearly outside a reasonable process and this was not corrected by the manner in which the appeal was held.

Analysis

[18]Therefore, I am concerned with the question as to the likelihood of that dismissal occurring if the respondent had carried out a proper procedure. On that basis I must examine the procedural failings first. 18.1. The respondent did not give the claimant advance notice of the disciplinary hearing.It seems to me that the claimant could have only provided, at best, the same information as I have heard had he been given advance notice. 18.2. The respondent failed to provide the claimant with the evidence it was relying on in deciding to dismiss the claimant. Again, the claimant could have only provided, at best, the same information as I have heard. 18.3. The respondent did not allow the claimant a representative. In my judgment allowing the claimant a representative would not have altered the information provided. 18.4. This means that the respondent was likely to be told by the claimant that he considered he had been told by Mr Thirumagan to discount all cash customers and that he had no recollection as to the other complaints. 18.5. The respondent is a small organisation, effectively it is made up of Mr and Mrs Thirumagan and one other employee. Therefore, during the process when the evidence was to be provided by Mrs Thirumagan and considered by Mr Thirumagan it appears to me unlikely in the extreme that this account from the claimant, which was contradicting Mr Thirumagan would have been accepted.

[19]On that basis I consider that there is a 0% chance that the claimant would have been successful in convincing the respondent that he was not being dishonest in his actions. On that basis I consider that there would be a 100% prospect that the claimant would have been dismissed in any event if the respondent had followed a correct procedure.

[20]I’m also clear that if the respondent had followed a proper procedure that doing so would have taken additional time beyond the 8 January 2017. In my judgement that would have taken an additional week. On that basis the claimant is entitled to one week’s wages as compensation for loss of earnings. Beyond that the claimant had worked for the respondent for two years, both above the age of forty-one, and therefore is entitled to three weeks wages as a basic award. In respect of wrongful dismissal, the claimant was entitled to two weeks’ notice (see clause 7 of the claimant’s contract of employment) and, on my finding, should be paid that in compensation.

[21]The claimant earned £172.80 per week gross and £170.66 net. On that basis the Basic award is three weeks gross pay amounting to £518.40. The compensatory award for loss of earnings at one week is £170.66. The claimant’s compensation for wrongful dismissal is two weeks’ net notice pay amounting to £341.32. Therefore, the total award to the claimant is £1030.38 which the respondent is ordered to pay to the claimant.