Employment Judge E SuttonMr Rushton (instructed by counsel) for claimantDate 13 May 2022
JUDGMENT
[1]The claimant’s complaint of unfair dismissal is well founded and succeeds
REASONS
Preliminary
[1]These are my reasons following the final hearing yesterday, 12 May 2022, and deal with liability issues arising from the claim brought by Mr Robert Bletcher, against the respondent, J H Willis Limited. The claim relates to unfair dismissal pursuant to section 95(1)(a) and section 98 of the Employment Rights Act 1996 (‘ERA’). The hearing was conducted remotely by CVP.[2]The claim was listed for 2 days. It was agreed between the parties that I would hear evidence on liability and remedy, and if the claimant was successful on liability, that we would proceed to consider remedy later today (13 May 2022).[3]We concluded the evidence on 12 May 2022 at 4.20pm. I gave an ex tempore oral judgment following that evidence on 13 May 2022, and these are my written reasons, as requested by the parties, in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013.[4]The claimant was represented by Mr Rushton of counsel, and the respondent was represented by Mr Randall. Mr Randall told me that he is not a qualified lawyer in England and Wales, but is an attorney and counsellor of law in New York. I am very grateful to them both for their assistance.[5]The respondent specialises in the transportation of milk and collects it from farms all over the country. It collects and delivers milk for 3 clients – County Milk Products of Wilmslow, Woodcocks who operate as Yew Tree Diary of Skelmersdale and Calon Wen of Narberth.[6]Between August 2015 and his dismissal on 13 November 2020, the claimant was employed by the respondent as a HGV driver. He says he worked around 60 hours a week. His duties included collecting milk from farms and transhipping it into trailers. Milk samples were taken before each load was transferred to the tanker to check the quality of the milk. The issue of how milk samples were taken by the claimant was the primary issue before me, which I will address in detail below.
The issues
[7]In reaching my decision, I have had regard to the written evidence in the agreed bundle (153 pages), and the witness statements of the claimant (8 pages), of Mrs Lindsay Bellis (director of the respondent) (9 pages) and Mr Sylvain Daugan (previous employee of the respondent) (3 pages).[8]At the commencement of the hearing, I asked the respondent for further detail regarding the Dairy Transport Assurance Scheme (‘DTAS’) and I was helpfully provided with a 2 page blue document by the respondent which explained the procedure. Section D1.5 relates to the procedure that must be in place for milk sampling. I also asked for a copy of the Drivers Handbook that the claimant would have had a copy of which explained the expectations of the company, including those which related to the taking of samples. I was initially provided (by the respondent) with what appeared to be a draft version during the hearing, but was thereafter sent what I understand to be the final version, dated September 2018 (23 pages).[9]The claimant was supported during the hearing by his wife and his trade union representative, Mr Dave Griffiths. They were present in the same room as the claimant, but played no active part in the hearing. References in this judgment to page numbers refer to those contained in the agreed bundle.
The issues
[10]At the outset of the hearing, I identified and agreed the issues to be determined with the parties.[11]It was agreed that the reason or principal reason for the claimant’s dismissal was ‘conduct’ which is a potentially fair reason for dismissal falling within section 98(1) ERA. The claimant also confirmed (due to differing information within the bundle) that he sought compensation only, if he were to succeed on liability.[12]The outstanding issues, by application of section 98(4) ERA and the principles arising from British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Food v Jones [1983] ICR 17, were agreed as follows:(1) Did the respondent genuinely believe that the claimant was guilty of misconduct?(2) If so, was that belief based on reasonable grounds?(3) Did the respondent carry out such investigation into the matter as was reasonable?(4) If all those requirements are met, was it within the band of reasonable responses for the respondent to dismiss the claimant?
The legal framework
[13]An employee has the right, under section 94 ERA, not to be unfairly dismissed, subject of course to certain qualifications and conditions set out in the ERA. Reason for dismissal[14]When a complaint of unfair dismissal is made, it is for the employer to prove that it dismissed the claimant for a potentially fair reason, namely a reason falling within section 98(2) ERA or some other substantial reason. As already stated, a reason relating to the claimant's conduct or capability is a potentially fair reason falling within section 98(2).[15]Where an employer alleges that its reason for dismissing the claimant was related to the claimant's conduct, the employer must prove that, at the time of dismissal, it genuinely believed that the claimant had committed the conduct in question; and that this was the reason for dismissing the claimant. The test is not whether the Tribunal believes the claimant committed the conduct in question, but whether the employer believed the claimant had done so. Fairness[16]If the respondent proves that it dismissed the claimant for a potentially fair reason the Tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason, applying the test in section 98(4) ERA.[17]Section 98(4) ERA provides that: ‘... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) 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 shall be determined in accordance with equity and the substantial merits of the case’[18]The Employment Appeal Tribunal (‘EAT’) has provided guidelines regarding how this test should be applied to cases of alleged misconduct in the case of British Home Stores v Burchell [1980] ICR 303. The EAT has stated that what the Tribunal should decide is whether the employer had reasonable grounds for believing the claimant had committed the misconduct alleged and had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.[19]The concept of a reasonable investigation can encompass a number of aspects, including: making proper enquiries to determine the facts; informing the employee of the basis of the problem; giving the employee an opportunity to make representations on allegations made against them and put their case in response; and allowing a right of appeal from the disciplinary process.
Findings of fact
[20]In 2015 ACAS issued its current Code of Practice on Disciplinary and Grievance Procedures. The Tribunal must take into account all relevant provisions of the Code when assessing the reasonableness of a dismissal on the grounds of conduct (section 207(3) of the Trade Union and Labour Relations (Consolidation) Act 1992).[21]Even where procedural safeguards are not strictly observed, a dismissal can be fair. This can be the case where specific procedural defects are not intrinsically unfair and the procedures overall are fair. The Tribunal must determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the openmindedness (or not) of the decision maker, the overall process was fair notwithstanding any deficiencies.[22]In applying section 98(4) the Tribunal must also ask itself whether dismissal was a fair sanction for the employer to apply in the circumstances. The test is an objective one. It is irrelevant whether or not the Tribunal would have taken the same course had it been in the employer’s place. Similarly it is irrelevant that a lesser sanction may be reasonable.[23]Rather, section 98(4) requires the Tribunal to decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.[24]This ‘range of reasonable responses’ test applies equally to the procedure by which the decision to dismiss is reached (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23).[25]The EAT has emphasised the importance of length of service and past conduct as being factors to take into account when considering whether the sanction imposed fell within the band of reasonable sanctions (Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382).
The facts
[26]From 1 April 2015 it has been a requirement that all dairy products carrying the Red Tractor Logo have to use milk that has been hauled by a DTAS approved Haulier. If the respondent were to lose its accreditation with DTAS, it says that it would be unable to operate.[27]The system employed and overseen by DTAS is that a driver will attend a farm to collect milk, he will undertake specific checks and then remove a sample pot and a ladle from a compartment at the rear of his vehicle. He must then take a sample from each of the farmer’s milk tanks, apply a label to the pots, and store them until he returns to the depot.[28]On 17 October 2020, at the end of the claimant’s 12 hour shift, he was asked to attend an investigation meeting in the meeting room [pg 43] and was interviewed of events from the beginning of September 2020. A solicitor (Alf Murphy) and Simon Lord (transport manager) were present. Allegations were made that the claimant allowed a farmer, Mr Shaw, to take his own samples on 1 September 2020, and that he had pressurised a colleague, Nigel Williams, to do the same. Mr Williams had accompanied the claimant on 1 September 2020 as he was to cover his shifts whilst the claimant was on annual leave.[29]Following this meeting, the claimant did go on his pre-booked holiday (for 5 days) and at the end of that period, he was absent from work due to illness. Whilst on sick leave, he received a letter dated 4 November 2020 explaining that disciplinary proceedings were to be taken against him. He was invited to attend a meeting on 9 November 2020. Three allegations were raised.[30]The claimant informed the respondent that the first allegation could not be correct as Mr Shaw was not present at his farm on 1 September 2020. He also explained that the information from Nigel Williams was incorrect [pg 29].[31]On the same day (1 September 2020) [pg 38-39] the claimant undertook a refresher training programme. Previous training had taken place on 10 December 2018 [pg 37]. The form generated at the conclusion of that training, confirmed that the claimant understood that he had to comply with company procedures and that a failure to follow those procedures may lead to disciplinary action. One of the subjects ‘ticked’ was knowledge of DTAS procedures.[32]A further letter dated 5 November 2020 was then provided to the claimant which included a further allegation that over the previous 12 months, the claimant had allowed Mr Shaw to take his own samples [pg 31]. The letter explained that the respondent considered that the allegations might amount to gross misconduct, which, if upheld, might result in the claimant being summarily dismissed. There were (therefore) a total of 4 allegations made against the claimant, which (in summary) were as follows:(1) On 1 September 2020, the claimant placed the general public at risk. Contrary to his training, he allowed Mr Shaw to take his own milk sample;(2) The claimant tried to persuade a colleague, Nigel Williams, to breach procedures and his training by pressurising him into letting Mr Shaw take his own milk samples;(3) On a date unknown, the claimant allowed the 14 or 15 year old daughter of Mr Shaw to ride in a company vehicle;(4) Over the last 12 months, the claimant repeatedly allowed Mr Shaw to take his own milk samples.[33]The disciplinary hearing took place on 11 November 2020 [pg 61]. The claimant was accompanied by his trade union representative. He produced further evidence, which he said, led to the conclusion that Mr Shaw was not at the farm on 1 September 2020 as alleged.
Conclusions
[34]On 13 November 2020 the claimant received a letter from the (then) company director, Natalie Jones [pg 73] confirming that the claimant had been dismissed due to gross misconduct with immediate effect and without notice pay. The claimant appealed this decision and an appeal hearing was heard by Mrs Bellis on 6 January 2021 [pg 103]. The decision to dismiss was upheld and an appeal outcome letter was sent to the claimant dated 1 February 2021 [pg 117]. Findings of fact The investigation meeting on 17 October 2020[35]The respondent chose not to call Simon Lord as a witness therefore I do not have the benefit of ‘his side’ of the story as to what exactly happened at the investigation meeting. From the notes provided, it is apparent that the manner in which this meeting was conducted was extremely unhelpful in a number of ways. This included the timing (after the claimant had worked a 12 hour shift), the lack of notice to the claimant, and the apparent aggressive manner of the questions asked as set out in the minutes of the meeting. This included an unsubstantiated assertion that the claimant was allowing Mr Shaw to take his own samples for payment – Alf Murphy stating ‘I’ve heard that £5 a day is the going rate’ [pg 43-46]. The disciplinary hearing on 11 November 2020[36]The notes of the disciplinary hearing are confusing and those questioning the claimant are unclear themselves regarding the dates of the alleged incidents (whether it was the 1 or 2 September 2020, for example) and the only CCTV footage related to the 2 September 2020 (ie, the wrong date). The respondent chose not to call Natalie Jones as a witness therefore I do not have the benefit of understanding her decision making in more detail. The appeal hearing on 6 January 2021[37]Notwithstanding the problems with the investigation and disciplinary hearing (which Mr Randall accepts were present), Mrs Bellis, in my judgment, did undertake a reasonable investigation of the issues before her. The claimant was provided with all relevant documents in advance and was accompanied by his trade union representative. Following the meeting, Mrs Bellis took a number of steps to undertake further investigations and review the documents prior to reaching her decision. Part of this further investigation involved gathering information from a number of members of staff, including Sharron Burrows, Simon Lord, Natalie Jones, Miles Alexander Thompson, Sylvain Daugan, Mark Gayton, Phil Thomas, Les Winsor and James Fleetwood.[38]Mrs Bellis also, quite properly, discounted the allegation that the claimant allowed the 14 or 15 year old daughter of Mr Shaw to ride in one of the vehicles. It was (as Mrs Bellis accepted in oral evidence) ‘not an issue that was relevant to the disciplinary issues - we were looking at sampling’. She also explained that had it been relevant, it related only to the claimant not being insured to take passengers as opposed to anything untoward. It is necessary for me to clearly spell this out as it was this allegation that caused the claimant significant personal issues following his dismissal, which (from the evidence of Mrs Bellis) was completely unnecessary and avoidable. The disciplinary appeal outcome[39]Even allowing for a wide discretion, I do not find it to be in the band of reasonable responses for the claimant to have been dismissed for gross misconduct with immediate effect. A ‘breach of company rules’ within the disciplinary policy of the respondent [pg 56] does not constitute gross misconduct and may only lead to dismissal after a prior warning has been given.[40]Whilst I fully accept that samples being taken by farmers could constitute a ‘lapse of safety standards’ [pg 57] which is a stated example of gross misconduct within the disciplinary policy (and what Ms Bellis appears to have relied on) there is a discretion as to the action of the respondent in those circumstances, meaning that the employer must look at the wider context. I do not find that the respondent did so, for the reasons set out in §§46-55 below. Conclusions (1) Did the respondent genuinely believe that the claimant was guilty of misconduct?[41]I am satisfied that the respondent genuinely believed that the claimant was guilty of misconduct. The core issue relates to sampling and the claimant accepted from the outset of the investigation that he allowed Mr Shaw to take milk samples [pg 33].[42]Having read the DTAS procedure document and the Drivers Handbook, although there is no express provision for the driver bearing the responsibility for taking the sample, I am satisfied that this is implicit as these documents set out the duties of the driver. The respondent may, however, wish to reflect upon this in due course and make this abundantly clear on page 14 of the Drivers Handbook (under the heading ‘sampling’).[43]It is also clear from the disciplinary letter and the appeal letter that this limb of the test is met. (2) If so, was that belief based on reasonable grounds?[44]I am satisfied that the respondent’s belief was based on reasonable grounds. The claimant has always accepted that Mr Shaw would take samples, even though company procedure said otherwise. The respondent was entitled to rely on what the claimant stated. The issue is rather the ‘defence’ the claimant provided to the actions he took. (3) Did the respondent carry out such investigation into the matter as was reasonable?[45]The investigation and the disciplinary process were not reasonable for the reasons set out above. However, by application of section 98(4) ERA, I have to look at all of the circumstances, which includes whether the appeal process rectified earlier deficits.[46]I am satisfied that Mrs Bellis undertook a reasonable appeal process. Most importantly, in my judgment, Mrs Bellis took a number of investigative steps following the appeal hearing (due to issues raised by the claimant) and sought information from a number of employees. I have also had regard to the size of the respondent (which Mrs Bellis describes as a small family business) when concluding that, overall, the investigative steps taken by the respondent were reasonable. (4) If all those requirements are met, was it within the band of reasonable responses for the respondent to dismiss the claimant?[47]In my judgment, this is the key issue to consider.[48]It is clear from the evidence I have read, and heard, that there was an issue during Sharron Burrows’ tenure as depot manager of farmers wanting to take their own samples. This is clear from her email to Mrs Willis on 12 January 2021 [pg 121]. Whilst she said that at no time did she have an agreement with County Milk to allow any producers to take their own samples, the claimant is not the only person who seemingly acted on what they understood to be her instruction.[49]For example, within an email dated 31 December 2020, Mr Birtwistle (the claimants line manager at the time) informed Mrs Bellis that he remembered Mrs Burrows allowing a few farmers who were complaining about test results, to take their own samples as long as a collection driver was also present [pg 96]. Mrs Bellis confirmed in her oral evidence that Mr Birtwistle had no ‘axe to grind’.[50]Additionally, the claimant says that Karl Leatherbarrow and Ian Hughes (his managers at the time) informed him that Mr Shaw could take his own samples. This was also confirmed to Mrs Bellis by Sylvain Daugan (HGV driver), and he has also set this out within a witness statement to the court. Mr Daugan was unable to give oral evidence as he was on holiday, however what he says in his statement is consistent with what he told Mrs Bellis during her investigations.[51]Additionally, Phil Thomas, Mark Gayton, Les Winsor and James Fleetwood told Mrs Bellis that Mr Shaw would take his own samples - the tenor of all of their responses being that this was a known practice. I have also had sight of the text message, seemingly from Miles Alexander Thompson [pg 135-137] (a former employee) which supports this further; suggesting that the pattern of Mr Shaw taking his own samples had gone on for over 7 years. Mrs Bellis confirmed in her oral evidence that she had no reason to doubt what was said in the text message.[52]In my judgment, the reality of the situation is that although drivers had the Drivers Handbook and were signing the training sheets (including the claimant), there was a marked difference in practice ‘on the ground’, which, at the very least, the claimant’s immediate managers were aware of, if not Mrs Burrows.[53]It is also reasonable to conclude that the forms signed by the claimant on 10 December 2018 [pg 37] and 1 September 2020 [pg 38-39] were not as a consequence of any detailed training by the respondent regarding the DTAS Scheme. I accept the claimant’s evidence that this was a tick box exercise, undertaken quickly at the end of a shift. In answer to Mr Rushton, Mrs Bellis accepted that if a manager had informed an employee of an accepted practice outside standard procedures, that it would not be unreasonable for the employee to follow it.[54]In this case, the claimant had worked for the respondent for 5 years, seemingly without problem. He had explained that sampling by Mr Shaw was an accepted practice and that he had been told that this was ok by senior management. Whilst there was a risk of harm in what the claimant had ‘allowed’ to happen, which Mr Randall in closing submissions described as a public safety risk and a cost risk, there is no evidence of any harm actually occurring.[55]It is also unclear why the claimant was treated differently to other workers who carried out the same practice. The answer of Mrs Bellis, that this was because the claimant worked longer hours (seemingly increasing the risk) does not assist. Mrs Bellis states in §96 of her witness statement dated 5 May 2022 that she ‘felt that the claimant’s conduct was different’ to that of(1) Sylvain Daugan(2) Phil Thomas(3) Les Windsor(4) Ian Hughes and(5) James Fleetwood – however her reasoning for reaching that conclusion has been not explained, sufficiently or at all.[56]By applying section 98(4) ERA, I do not find that dismissal was a fair sanction for the respondent to apply in the particular circumstances of this case. For the reasons set out above, the decision to dismiss the claimant did not fall within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.[57]I have therefore concluded that the claimant’s claim of unfair dismissal pursuant to the provisions of section 95 and section 98 ERA is well founded and succeeds.[1]These are my reasons following the final hearing on remedy which concluded on 13 May 2022, and should be read in conjunction with my judgment on liability dated 13 May 2022. I explained to the parties at the conclusion of the evidence that I would draft these reasons over the weekend, and they are dated 15 May 2022. References in brackets are to the agreed hearing bundle comprising of 153 pages.[2]The claimant was represented by Mr Rushton of counsel, and the respondent was represented by Mr Randall. I am grateful to them both for their assistance. Both representatives made submissions in relation to remedy, and I also had the benefit of hearing oral evidence from the claimant on this issue on 12 May 2022.[3]The parties agreed a loss of statutory rights payment in the sum of £500. As regards the basic award, whilst the parties provided an agreed figure of £4,282.50, this was based on the current gross statutory weekly cap from April 2022 (£571) as opposed the cap operative at the effective date of termination on 13 November 2020 (£538). Consequently, applying the statutory formula in section 119 ERA (5 years’ service x 1.5 (age factor) x £538) the basic award is £4,035.[4]During submissions, it was also agreed between the parties that the respondent did not fail to follow the ACAS Code of Practice on Disciplinary Procedures. I do not (therefore) need to consider reducing the award of compensation in accordance with section 124A(2) of the Employment Rights Act 1996 (‘ERA’).[5]In terms of loss of earnings, it was 78 weeks from the end of the notice period (13 November 2020) until the remedy hearing (13 May 2020) at an agreed net weekly wage of £609.02. This parties agreed a total loss of earnings in the sum of £47,503.56.[6]In terms of future loss of earnings, the claimant stated (within his schedule of loss, undated, but thought to be around July 2021 from the dates set out therein) [pg 140-142] that he believed it would take him between 3-6 months to secure a job commensurate with the salary he received whilst employed by the respondent. Taking the claimant’s case at its highest, 6 months after July 2021 is January 2022 and it is now 4 months beyond that. The claimant remains unemployed. I have not been provided with any evidence regarding why extending the period claimed would be just and equitable. A future loss of earnings ‘head’ is not, therefore, appropriate in this claim. Mr Rushton did not actively pursue this point. The issues[7]Having heard the submissions of Mr Rushton and Mr Randall, it would appear that the issues which I need to consider in finalising the compensatory award are:(1) Whether the claimant has taken reasonable steps to mitigate his loss of earnings?(2) Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason, and if so, should the claimant’s compensation be reduced, and if so, by how much?(3) As the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce the claimant’s compensatory award and, if so, by what proportion? Key legal framework[8]The only remedy for unfair dismissal sought by the claimant is compensation. The legislation provides for basic and compensatory awards and the basic award, as set out above, is agreed. The key parts of the ERA and relevant case law as regards the outstanding issues before me are as follows: ‘118.— General. (1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of— (a) a basic award (calculated in accordance with sections 119 to 122 and 126, and (b) a compensatory award (calculated in accordance with sections 123, 124, 124A and 126)’[9]For the avoidance of doubt, the compensatory award is to fully compensate the claimant as if he had not been unfairly dismissed, but not to award a bonus or punish the respondent. Mitigation of loss[10]Section 123(4) ERA states that: ‘In ascertaining the loss referred to in subsection (1) the Tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales ...’[11]In Archbold Freightage v Wilson [1974] IRLR 10 it was said: ‘The dismissed employee’s duty to mitigate his or her loss will be fulfilled if he or she can be said to have acted as a reasonable person would do if he or she had no hope of seeking compensation from his or her previous employer.’[12]In the case of Savage v Saxena [1998] ICR 357 the EAT recommended a threestep approach to determining whether an employee has failed to mitigate their loss. First, identify what steps should have been taken by the claimant to mitigate her loss. Second, find a date upon which such steps would have produced an alternative income. Three, thereafter reduce the amount of compensation by the amount of income which would have been earned. The burden of proof rests upon the respondent to show a failure to mitigate by the claimant.[13]In Tandem Bars Ltd v Pilloni [2012] EAT 0050/12 the EAT stressed that rather than concentrating on what the employee actually did to find work, the Tribunal’s focus should be on the steps that were reasonable for her to take in the circumstances.[14]It is important to emphasise that the duty is only to act reasonably and the standard of reasonableness is not high as the respondent is the wrong-doer (Fyfe v Scientific Furnishings [1989] ICR 648, EAT). Contributory conduct[15]Section 122(2) ERA provides that: ‘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’[16]Section 123(6) ERA provides that: ‘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’[17]In the case of Nelson v The British Broadcasting Corporation (no.2) [1980] ICR 110, the court said: ‘For conduct to be the basis for a finding of contributory fault, it has to have the characteristic of culpability or blameworthiness. Conduct by an employee capable of causing or contributing to dismissal is not limited to actions that amount to breaches of contract or that are illegal in nature, it could also include conduct that was perverse or foolish, bloody-minded or merely unreasonable in all the circumstances. In order for a deduction to be made under section 123(6) of the Act, a causal link between the employee’s conduct and the dismissal must be shown to exist’[18]In the case of Hollier v Plysu Ltd [1983] IRLR 260 it was suggested that the contribution should be assessed broadly and should generally fall within the following categories: Wholly to blame: 100%; Largely to blame: 75%; Employer and employee equally to blame: 50%; Slightly to blame: 25%.[19]In assessing contributory conduct, I must look at the conduct of the claimant. The conduct of the respondent or of other employees is not relevant.
Findings of fact
[20]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. (1) Whether the claimant has taken reasonable steps to mitigate his loss of earnings?[21]As set out above, issues of mitigation are matters of fact and the burden of proof is on the respondent. The claimant does not have to prove he has mitigated his loss. The respondent has to show that the claimant acted unreasonably.[22]In relation to Mr Randall’s submission that the claimant could have got another job as a HGV driver as such workers were ‘in demand’ during the pandemic, I cannot sensibly place much, if any weight on that assertion. This is a generalised submission for which there is no evidence before me. Whilst the claimant stated in cross examination that he was aware that this had been mentioned on the BBC news, I do not see how this takes the respondent any further.[23]Equally, I do not see how the submission that a failure to seek medical attention (as a consequence of the claimant’s stated depression) can equate to a failure to mitigate loss on the particular facts of this case. I have carefully considered the authority of Wilding v British Telecommunications Plc [2002] EWCA Civ 3 relied on by Mr Randall. I was not taken to any specific paragraphs during the hearing, and, having reminded myself of the content of this authority following the hearing, I cannot see the relevance.[24]In that case, Mr Wilding (the employee) challenged the Employment Tribunal’s finding, upheld by the EAT, that he had not acted reasonably in refusing an offer of re-employment made by his employer. The focus of the appeal (the leading judgment given by Potter LJ), was whether Mr Wilding had failed in his duty to mitigate his loss by unreasonably refusing an offer of re-employment. This was not a relevant issue in the present case.[25]In any event, even if I accept the respondent’s contention that it was reasonable for the claimant to take medical advice, the respondent has not shown that it was unreasonable for the claimant not to have done so – particularly as the claimant was clear in his oral evidence as to the reason why he did not want to raise the issue of being depressed with a doctor. He explained that: ‘when you are a heavy goods vehicle driver, you don’t say you have depression because they would take the heavy goods off you. I wanted to try to work things out myself. I wanted to right it [the depression] myself’.[26]I do have evidence that the claimant was looking for work as he was in receipt of JSA. He also told me that he made a number of phonecalls to seek alternative employment, but that his dismissal by reason of gross misconduct was causing him particular difficulty. In all of the circumstances, I do not find that the claimant failed to mitigate his loss. (2) Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason, and if so, should the claimant’s compensation be reduced, and if so, by how much?[27]Mr Randall accepted that this was not a typical Polkey deduction issue (by reason of my judgment on liability), however he sought to argue that the claimant would have been dismissed within 6 months as he was prepared to break the DTAS rules regarding milk sampling. Mr Randall relies on the authority of O’Donoghue v Redcar & Cleveland Borough Council [2001] EWCA Civ 701 in making this submission; citing §39. I was not provided with a copy of this authority, and having reminded myself of this decision following the conclusion of the hearing, I note §44 in particular, where Potter LJ states the following: ‘While we acknowledge its exceptional nature, we do not think that the exercise undertaken by the Industrial Tribunal which led to Decision (4) is necessarily impermissible. An Industrial Tribunal must award such compensation as is "just and equitable". If the facts are such that an Industrial Tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis . We do not read Polkey or King –v Eaton Limited as precluding such an analysis by an Industrial Tribunal and we do not think that the exercise which they performed was self-evidently incorrect given the adverse view which they had formed of this particular appellant …..’[28]Two points arise from that passage; firstly the exceptional nature of such a finding, but secondly, and importantly, there must be evidence that a course of conduct, or unacceptable attitude on the part of the employee, would continue and which would not be tolerated by the employer. The claimant was not cross examined about this and Mrs Bellis was not asked to address this issue. This is not a case where the claimant was considered to be a rude or disobedient employee (for example) and the respondent did not raise concerns regarding the claimant’s conduct in his 5 years’ employment pre dismissal.[29]Whilst I accept that in some cases a reduction of compensation could be considered for ‘non Polkey’ reasons, it would not be just and equitable to do so in this case based on the evidence before me. (3) As the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce the claimant’s compensatory award and, if so, by what proportion?[30]Mr Randall submits that the claimant ‘contributed to his own demise’ as he accepted that he was in breach of the Drivers Handbook and DTAS procedure, and although management had given him permission, this was still a breach of what the company expected. Mr Randall submits that the claimant’s compensation should be reduced by 25-50%; emphasising that this should be at the lower end. Mr Rushton says there should be no reduction, but if I am against him on that point, that it should be towards the lower end of the scale.[31]Focusing on the actions of the claimant and not the respondent or other employees, I am satisfied that the claimant’s action of allowing a farmer (Mr Shaw) to take his own milk samples was blameworthy in the sense that he was aware of what was expected by the respondent company, and that his conduct caused the dismissal. I have also taken into account the fact that the claimant accepted acting outside the Drivers Handbook and DTAS procedure.[32]Insofar as there was a dichotomy between what was happening ‘on the ground’, and company policy, it is reasonable to expect the claimant to have at least raised this ‘clash’ with his managers at the time. Additionally, whilst I acknowledge its limitations (in terms of comprehensiveness), the claimant did have a form of refresher training on 1 September 2020 (the relevant time period) which included the DTAS procedure. This provided another opportunity for the claimant to at least raise the issue of what was happening in practice compared to the expected procedure.[33]This was not, however, a case where the claimant had a stated preference of working (ie, to allow a farmer to collect their own milk sample), and sought to continue with that stated preference in the face of opposing information of those working with him/those in management. I am satisfied that it is just and equitable to reduce both the basic and compensatory award, however due to the culture in which he was working, I find that the claimant was only slightly to blame. A reduction of 25% of both the basic and compensatory award would therefore be appropriate in the particular circumstances of this case.
Conclusions
[34]By reason of the above, the respondent shall pay the claimant compensation for unfair dismissal in the sum of £41,538.50 comprising of:(1) Basic award £4,035 5 years’ service x 1.5 (age factor) x £538 Less 25% contributory fault (section 122(2) ERA) (25% of £4,035 = £1,009) (A) £3,026(2) Compensatory award (a) Loss of wages to date of remedy judgment Agreed net average wage of £609.02 per week from 13 November 2020 to 13 May 2020 (78 weeks) £47,503.56 (b) Loss of statutory rights payment £500 (£48,003.56) Less 25% contributory fault (section 123(6) ERA) (25% of £48,003.56 = £12,000.89) £36,003 Grossing up at tax rate of 20% £30,000 - £4,035 = £25,965£36,003 - £25,965 = £10,038£10,038 / 0.8 = £12,547.50£25,965 + £12,547.50 (B) £38,512.50 TOTAL (A) + (B) = £41,538.50[35]The claimant claimed jobseeker's allowance and the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations 1996 (‘the Recoupment Regulations’) apply in this case. The grand total is £41,538.50. The prescribed element is £38,512.50. The period of the prescribed element is from the date of dismissal on 13 November 2020 until the remedy judgment on 13 May 2022 (78 weeks). The excess of the grand total over the prescribed element is £3,026.