Mr R TalmanClaimantAirbus Operations LtdRespondent
Before
Employment Judge S JenkinsMr G Pollitt (instructed by Counsel) for claimantMr A Alemoru for respondentDate 13 May 2021
JUDGMENT
[1]The Claimant’s claim that he was subjected to detriments on the ground that he had made protected disclosures, pursuant to section 47B Employment Rights Act 1996 (“ERA”), was presented after the end of the period of three months beginning with the last act to which his complaint related. It was reasonably practicable for the complaint to have been presented within that period of three months, and his claim is therefore dismissed.[2]The reason, or principal reason, for the Claimant’s dismissal was not that he had made a protected disclosure, and his claim of unfair dismissal pursuant to section 103A ERA therefore fails and is dismissed.[3]The Claimant did not commit a repudiatory breach of contract which entitled the respondent to summarily dismiss him without notice, and his claim of wrongful dismissal therefore succeeds.[4]The Claimant was unfairly dismissed and his claim of unfair dismissal pursuant to section 94(1) ERA therefore succeeds.[5]The amount of compensation to be awarded in respect of the Claimant’s successful claims remains to be assessed, and a separate remedy hearing will take place unless the parties can reach agreement between themselves. It will however be subject to the following points:5.1 It is just and equitable to reduce the Claimant’s basic award by 50% due to his conduct before his dismissal. Case No: 1600462/2018(V)5.2 The amount of the Claimant’s compensatory award shall be reduced by 50%, applying the “Polkey” principle.5.3 The amount of the Claimant’s compensatory award, i.e. after the reduction at 5.2 above, shall be further reduced by 50%, on the basis that the dismissal was to an extent caused or contributed to by the actions of the Claimant. JUDGMENT having been sent to the parties on 14 May 2021 and reasons having been requested by the Claimant in accordance with Rule 62(3) of the Rules of Procedure 2013:
REASONS
[1]The hearing was to consider the Claimant’s claims of unfair dismissal, pursuant to both Section 94(1) Employment Rights Act 1996 (“ERA”) and Section 103A ERA. We heard evidence from Mr Martin Bolton, Fast Track Leader – Industry; Mr Alan Jones, Process Manager; and Mr Brian Agnew, CDT Leader; on behalf of the Respondent, and from the Claimant on his own behalf. We considered the documents in the bundle spanning 1,089 pages and some supplemental documents to which our attention was drawn. We viewed, or in effect listened to, a recording, made covertly by the Claimant of a meeting with some of the Respondent’s managers. We also considered the parties’ written and oral submissions.
Issues
[2]Then Regional Employment Judge Clarke confirmed, in a summary issued following a Preliminary Hearing on 26 July 2018, that the issues set out in the parties’ agreed Agenda for that hearing were to be adopted, and that was confirmed at a further Preliminary Hearing before then Employment Judge Sian Davies on 29 March 2019. They were: Section 103A ERA 1996 – automatically unfair dismissal on the grounds of making a protected disclosure:• Did the Claimant make a qualifying disclosure pursuant to Section 43B ERA 1996?• Was the making of the disclosure the reason (or principal reason) for the dismissal?• Was the disclosure in question a protected disclosure within the meaning of the ERA 1996? Section 47B ERA 1996 – detriment on the grounds of making a protected disclosure:• Did the Claimant make a qualifying disclosure pursuant to Section 43B ERA 1996?• Was the disclosure in question a protected disclosure within the meaning of the ERA 1996?• Was the Claimant subjected to the detriments relied upon in paragraph 43 (a) – (c) of the Particulars of Claim on the ground that he made a protected disclosure? Section 94(1) ERA 1996 – Unfair dismissal:• What was the principal reason for the Claimant’s dismissal?• Was it a fair reason to dismiss?• Did the company act reasonably in treating that as the reason to dismiss including a reasonable held belief: on reasonable grounds: after reasonable investigation (Burchell test) and did the decision fall within the band of reasonable responses?• Was a fair procedure followed which complied with the ACAS code of practice and the companies own internal procedures?• If there is a procedural defect would it have made any difference if the correct procedure had been followed (Polkey)?• If the dismissal was unfair did the Claimant cause or contribute to his own dismissal (contributory fault)?• Has the Claimant mitigated his loss?• If the dismissal is unfair what remedy is appropriate? Wrongful Dismissal:• Did the Claimant commit a repudiatory breach of contract entitling the Respondent to summarily dismiss without notice?[3]Further clarification of the issues was made at the outset of the hearing. We identified that the first bullet points of the sections dealing with the Section 103A claim and the Section 47B claim were the same and would be dealt with as an initial point.[4]We also identified that there was a time point to be considered in relation to the Section 47B claim, as it appeared, on the face of it, that that claim had been brought outside the time limit specified in Section 48 ERA. We therefore needed to consider whether it had been reasonably practicable for the claim to have been brought in time and, if not, whether it had been brought within a further reasonable period.[5]We also noted that if any of the Claimant’s claims were successful we would need to consider what compensation to award, which would be dealt with, if necessary, at a subsequent hearing.[6]Mr Pollitt, on the Claimant’s behalf, also confirmed that the Claimant was maintaining that, if his claims were successful, his compensation should be increased due to an asserted failure by the Respondent to comply with the terms of the ACAS Code. That issue was identified in the Claimant’s claim form but had not been included in the List of Issues within the Case Management Agenda.
Law
[7]Much of the applicable law was encapsulated within the List of Issues, but we bore in mind the following specific points. Protected disclosure[8]In deciding whether a disclosure is protected by law, a Tribunal has to have regard to• Whether there has been a disclosure of information.• The subject matter of disclosure in accordance with Section 43B ERA 1996, asserted by the Claimant in this case to be health and safety endangerment and breach of legal obligation.• Whether the Claimant had a reasonable belief that the information tended to show one of the relevant failures in Section 43B ERA 1996.• Whether the Claimant had a reasonable belief that the disclosure was in the public interest.[9]With regard to disclosure of information, the Employment Appeal Tribunal (“EAT”), in Cavendish Munro Professional Risks Management Limited -vGeduld [2010] ICR 325, drew a distinction between the making of an allegation, which would not be said to disclose information, and the giving of information in the sense of conveying facts. However, the Court of Appeal in Kilraine -v- London Borough of Wandsworth [2018] ICR 1850, noted that the two categories are not mutually exclusive, and that the key guidance from Geduld was that a statement which was devoid of specific factual content could not be said to be a disclosure of information.[10]With regard to reasonable belief, we needed to be satisfied that the information tended to show a relevant failure in the reasonable belief of the worker, i.e. in this case the Claimant. The EAT, in Korashi -v- Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, directed that that involved applying an objective standard to the personal circumstances of the discloser. The EAT also noted, in Darnton -v- University of Surrey [2003] ICR 615, that the claimant does not need to be factually correct and need only demonstrate that they have a reasonable belief.[11]With regard to public interest, we were mindful of the guidance provided by the Court of Appeal, in Chesterton Global Limited -v- Nurmohamed [2017] EWCA Civ 979, that noted that the following matters would be relevant:• The numbers in the group whose interests the disclosure served.• The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed.• The nature of the wrongdoing disclosed.• The identity of the alleged wrongdoer. Section 47B claim[12]If we were satisfied that a protected disclosure had been made we would have to consider whether a detriment had arisen. The issue of detriment has arisen regularly in relation to claims under anti-discrimination legislation, and we noted that the Court of Appeal, in Ministry of Defence -vJeremiah [1980] ICR 13, confirmed that it meant “putting under a disadvantage”, and, in Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, that it involved “a disadvantage of some kind”. Section 47B and Section 103A claims[13]We noted that both the claims arising from alleged protected disclosures involved an element of causation. The claim under Section 47B relates to detriment “on the ground” of the disclosure, and the claim under Section 103A involves the “reason or principal reason” for the dismissal.[14]With regard to claims under Section 47B, the Court of Appeal. in NHS Manchester -v- Fecitt [2012] IRLR 64, noted that causation involved something which materially influenced the treatment, and, in Section 103A claims, the Supreme Court, in the case of Royal Mail Limited -v- Jhuti [2019] UK SC 55, indicated that ordinarily Tribunals would look no further than the reasons of the decision maker, but that where the reason was hidden from the decision maker they could look behind that invention. Section 94 claim[15]If we considered that the reason for the Claimant’s dismissal was the protected disclosure then his claim under Section 103A would succeed. If not, we would still need to consider his claim pursuant to Section 94 ERA. In that regard we noted that first we would have to be satisfied that the Respondent had demonstrated its reason for dismissal and that it was a potentially fair one falling within Section 98(1) or (2) ERA. We noted that the Court of Appeal, in the case of Abernethy -v- Mott Hay and Anderson [1974] ICR 323, noted that the reason was the set of facts which led to the decision to dismiss.[16]If the Respondent satisfied us that dismissal was for a potentially fair reason we would then have to consider whether dismissal for that reason was fair in all the circumstances, applying Section 98(4) ERA where the burden of proof was neutral.[17]The Respondent in this case advanced two potential reasons. The first was conduct, in which case the test set out in the case of British Home Stores Limited -v- Burchell [1978] IRLR 379, as set out in the List of Issues, would be relevant. The second was that of some other substantial reason justifying the dismissal of the Claimant (“SOSR”).[18]In either case we were conscious that our role was not to step into the shoes of the Respondent but to consider whether the decision fell within the range of reasonable responses that a reasonable employer might adopt in the circumstances. That test would also apply to the scope of the investigation undertaken by the Respondent.[19]If our conclusion was that the reason for dismissal was SOSR then, whether fair or not, the Claimant would be entitled to statutory notice, in his case due to his length of service of 12 weeks, pursuant to Section 86 ERA, Section 86(6) noting that entitlement to notice does not arise where termination arises by reason of conduct, but does in relation to other reasons.[20]With regard to the wrongful dismissal claim, as noted in the List of Issues, the Claimant was summarily dismissed i.e. without notice. The question for us therefore was whether the Claimant had committed a repudiatory breach of contract, i.e. an act of gross misconduct, such as to justify the Respondent treating the contract as at an end and summarily dismissing the Claimant. The EAT, in the case of Sandwell and West Birmingham Hospitals NHS Trust -v- Westwood (UKEAT/0032/09), indicated that the Tribunal must consider both the character of the conduct and whether it was reasonable for the employer to regard that conduct as gross misconduct. That is an objective test on the facts of the case considered on the balance of probability. Time limits[21]With regard to time limits, we noted that this was only relevant to the Section 47B claims, the other claims having clearly been brought in time. The issue of reasonable practicability includes an assessment of the Claimant’s ignorance of rights but any ignorance must be reasonable. Lord Scarman, in Dedman -v- British Building and Engineering Appliances Limited [1974] ICR 53, noted that a Tribunal must ask the questions of “What were his opportunities for finding out that he had rights? Did he take them? If not, why not?”. We also noted that the Court of Appeal, in Porter - v- Bandridge Limited [1978] ICR 943, noted that the test was not whether the Claimant knew of his or her rights, but whether he or she ought to have known of them.[22]Where a claimant is generally aware of their rights, ignorance of the time limit will rarely be acceptable as a reason for delay. The EAT, in Trevelyans (Birmingham) Limited -v- Norton [1991] ICR 488, noted that when a Claimant knows of their right to claim they are under an obligation to seek information and advice about how to enforce that right.[23]Where any delay arises through ignorance or fault of a skilled adviser, it will have been reasonably practicable for the claims to have been brought in time. A skilled adviser can include solicitors but also can include trade union representatives.[24]If we considered that it had been reasonably practicable for the claim to have been brought in time then it would fail. If however we considered that it had not been reasonably practicable we would still need to consider whether it had been submitted within such further period as we felt was reasonable in the circumstances.
Findings
[25]Our findings, on the balance of probability where there was any dispute, were as follows.[26]The Claimant was employed by the Respondent from September 2004, initially as an Apprentice and then as an Aircraft Fitter. He was engaged in the manufacture of wings at the Respondent’s factory in Broughton where approximately 7,000 people were employed. At the time of the Claimant’s dismissal and the matters leading to it, the Claimant was employed in one of the Respondent’s factories producing wings for the A330 aircraft.[27]Prior to 2017 no issues had arisen with the Claimant’s conduct. Just prior to that, at the end of 2016, the Claimant had applied for promotion to the role of Process Manager. He was unsuccessful, but one of his colleagues, Mr Lee Haselden, was successful, and by 2017 he was the Claimant’s Line Manager.[28]In terms of production processes, prior to 2017 in the A330 factory, processes were learned by employees from training provided by other, more experienced, employees. In 2017, a new formal process called TICON was introduced. The process appeared to have had a deleterious impact on production and ultimately was shelved with the previous processes being reintroduced.[29]From the end of January 2017, the Claimant, on several occasions, raised concerns with his managers, principally Mr Haselden, but also on occasions involving Mr Cornelius Waedelich, Head of Business for A330, and also Mr Haselden’s Line Manager, and others. These concerns involved a number of issues that had arisen from the application of the TICON processes, principally involving the production of oversize holes and damage to panels in the form of scarring and delamination.[30]The Claimant also raised concerns about a process known as “hoover buddying”. The process of drilling panels created chrome dust and the buddying process involved another employee standing alongside the employee carrying out the drilling with a vacuum cleaner to collect the dust, thus minimising any risk to the drilling employee of inhaling any of the dust. The Claimant raised concerns that the operators were being discouraged from using hoover buddies as that impacted on the speed of production.[31]We noted the Claimant’s evidence that he was not aware that what he was doing was raising concerns on a whistleblowing basis until after he was dismissed, and we accepted that. In that context, we also noted the evidence of Mr Agnew, and indeed the evidence of Mr Jones and Mr Bolton at earlier stages, which we accepted, was that they were unaware of any of the specifics relating to the Claimant’s concerns, only that they understood that complaints had been raised by the Claimant. They were not the direct recipients of any of the Claimant’s claimed disclosures.[32]We heard no evidence of the relationship between the Claimant and Mr Haselden prior to 2017, but by the time the second quarter of 2017 was reached it certainly seemed to be a poor one.[33]An incident occurred on 8 April 2017 when the Claimant brought to Mr Haselden’s attention concerns over three panels. Mr Haselden agreed that one was defective but directed the Claimant to continue to work on the other two, but the Claimant refused. Mr Haselden contended that the Claimant behaved aggressively in this discussion. The Claimant disputed that, but a contractor, working nearby, noted that the Claimant had been aggressive and had been “bordering on ranting”.[34]We were satisfied that this event did occur as contended by Mr Haselden. The contractor largely supported his version of events, when questioned on it in June as part of an investigation into a dignity at work complaint brought by the Claimant, when questioned on it again in July 2017 as part of a grievance raised by Mr Haselden, and again when questioned by Mr Bolton in the disciplinary hearing relating to the Claimant. We were also satisfied that the Claimant’s behaviour on this occasion did involve insubordinate and aggressive behaviour.[35]A further incident occurred on 10 April 2017 when Mr Haselden asked the Claimant to act as a hoover buddy for one of his colleagues. The Claimant was reluctant to do that, pointing out that other employees were in a better position to do it and questioned why it should be him. Mr Haselden continued to insist that the Claimant should do the task as requested and then spoke to Mr Jones, another Process Manager in the area, and one we perceived as being more experienced. Mr Jones told Mr Haselden to repeat the instruction to the Claimant and to inform him that it was a reasonable management request, which he did, and there was still reluctance on the Claimant’s part to undertake the task. The Claimant in his evidence emphasised that he never refused to do the task, but simply asked why it should be him, but regardless of that, it seemed that the Claimant did not comply with Mr Haselden’s instructions.[36]That led to a meeting between Mr Jones and the Claimant, accompanied by a representative from Human Resources and a Trade Union Representative, and to Mr Jones deciding that the Claimant should be suspended, although that suspension was very promptly rescinded. No further action was taken, although we observed that the Claimant appeared to have been insubordinate in his refusal, whatever his justification.[37]The Claimant raised a grievance and a dignity at work complaint on 11 May 2017, essentially about his concerns about his treatment by Mr Haselden. He took advice from a Trade Union Representative who informed him that the grievance should be delivered to the Claimant’s manager, i.e. Mr Haselden. The grievance policy in fact stipulated that it be sent to an “appropriate” manager or an HR Business Partner, and we felt that Mr Haselden was not an appropriate manager, bearing in mind that the grievance was about him, but we accepted that the Claimant followed the advice of his Trade Union in seeking to hand the grievance to Mr Haselden.[38]The Claimant attempted to hand the grievance to Mr Haselden in the Production Office and to get him to sign for it. The Claimant did this in the presence of a colleague to act as a witness to the presentation of the grievance, but there were also several other employees present. The Claimant made no attempt to hand over the grievance in a private manner although we understood that meeting rooms had been available.[39]Mr Haselden was taken aback by the request and refused, indicating that he would seek HR advice before signing it. Mr Jones intervened and supported that approach, and the Claimant ultimately handed both the grievance and the dignity at work complaint to Mr Waedelich, he being the correct person to whom the latter was to be delivered, as provided for in the Respondent’s policy.[40]The Claimant’s grievance involved seven scenarios where he contended Mr Haselden’s behaviour had affected his dignity at work. These included concerns around overtime and requests for absence, but also referred to the incident on 8 April and to his suspension on 10 April. Essentially, the Claimant contended that he had been bullied and harassed by Mr Haselden.[41]The Claimant’s complaint was investigated by Mr David Hughes, Integration Manager. He reported his conclusions on 27 June 2017, which were that, in relation to some elements, Mr Haselden’s conduct had been less than expected, but not to a point where he considered it inappropriate behaviour. Mr Hughes did not consider that the Claimant had been the subject of bullying or harassment. He recommended that Mr Haselden undergo training but did not recommend disciplinary action.[42]The Claimant appealed the outcome but ultimately that appeal was not upheld.[43]As part of his response to the Claimant’s grievance against him however, Mr Haselden filed his own complaint regarding the Claimant’s behaviour towards him. Essentially complaining that he was being upwardly bullied by the Claimant, raising eleven scenarios in which he asserted that had happened. The complaint was then dealt with by the Respondent under its Dignity at Work Procedure, and was investigated by Mr Lee Hunt, Project Management Business Partner.[44]Mr Hunt carried out his investigation into the eleven scenarios raised by Mr Haselden and concluded, in relation to three of them, that there was a disciplinary case to answer. That led to the Claimant being invited to a disciplinary hearing with Mr Bolton on 28 September 2017. The disciplinary offences were recorded as:• “Acting in an insubordinate, aggressive and abusive manner towards Lee Haselden on Saturday 8 April in the Process Manager’s office when discussing the black panels.• Acting in an insubordinate, abusive and threatening manner following an incident between you and Lee Haselden on 10 April.• Acting in such a way as to cause embarrassment and distress to Lee Haselden by publicly announcing that you were submitting a grievance against him.• Whether or not, in the event that you were found to have committed the behaviour alleged in incidents above, that amounts to a course of unwanted conduct which had the purpose or effect of violating the recipients dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for Lee Haselden, which would therefore amount to bullying.”[45]Mr Hunt’s report was enclosed, and the Claimant was warned that a possible outcome of the hearing could be his summary dismissal. He was also reminded of his right to be accompanied by a trade union representative or work colleague.[46]The hearing took place as scheduled, with Mr Bolton being accompanied by an HR Business Partner, and the Claimant being accompanied by a Senior Trade Union Convener. The disciplinary allegations were discussed. The Claimant maintained his denial of the allegations but, with regard to the incident relating to the handing over of the grievance, he commented that had he known at the time that he was causing embarrassment to Mr Haselden he would have apologised.[47]Mr Bolton concluded the meeting by saying that he needed to go away and consider some of the points further. He also observed that the most severe sanction if he upheld the allegations would be dismissal, but that if he decided not to dismiss he was 99% sure that the Claimant would not be returning to his previous location. He asked the Claimant for his thoughts on that, and the Claimant replied that he would go where he had to and that he would do anything to save his job.[48]We observed that transfers between departments and factories was a regular occurrence within the Respondent’s organisation, and that a transfer was specifically identified as a possible alternative sanction to dismissal within the Respondent’s disciplinary procedure.[49]Following the hearing, Mr Bolton undertook further investigations, which included speaking to the contractor about the events of 8 April 2017. He then reconvened the disciplinary hearing on 9 October 2017 for him to deliver his conclusions to the Claimant. He did not provide any documentation relating to his further investigations to the Claimant in advance of the meeting.[50]Mr Bolton’s conclusions were that the allegation relating to the events of 10 April was not upheld, but that the allegations relating to the events of 8 April and 11 May were upheld. He concluded that the Claimant had not intended to bully Mr Haselden, but that his behaviour had fallen well short of the Respondent’s expectations. He confirmed that he had decided not to dismiss the Claimant, but to issue a final written warning to last for 12 months. He also indicated that he had decided that the Claimant would be moved to work in the A380 factory. He confirmed the Claimant’s ability to appeal his decision.[51]Mr Bolton confirmed his decision in a letter to the Claimant dated 19 October 2017. In this, he noted that the accepted allegations constituted gross misconduct which could lead to summary dismissal, but that he had taken account of various mitigating factors, including the Claimant’s length of service and previous good record, the fact that the Claimant had not been given feedback on his behaviours in order to address them, and that the Claimant had indicated that had he been given the opportunity to do so he would have apologised to Mr Haselden. Mr Bolton confirmed his decision to issue a final written warning with a transfer of department.[52]The Claimant submitted a detailed appeal, and Mr Agnew was allocated to hear it. He wrote to the Claimant on 8 November 2017, inviting him to an appeal hearing on 13 November. In the letter, Mr Agnew confirmed that in the event that the sanction was upheld then consideration would have to be given to whether the Claimant agreed to be transferred and, if not, what the implications of that would be.[53]The Claimant raised a concern that Mr Agnew should not hear his appeal as he was the overall manager of the A330 area and therefore had knowledge of the circumstances of his case. The Respondent disagreed with that and we saw no reason why Mr Agnew should not have been allocated to hear the appeal, being the manager with overall responsibility for the area and having no more than background knowledge that issues had arisen.[54]The hearing dealt with the content of the Claimant’s appeal and a discussion about the move took place. Mr Agnew confirmed that A380 had been chosen for the Claimant as it involved the same type of work. The Claimant commented that he was not mentally able to move because of the way the business had made him feel, to which Mr Agnew responded that the Respondent would provide further occupational health support.[55]We observed that, by this time, the Claimant was being treated for anxiety and depression and had been absent for much of the Summer, only returning briefly before the disciplinary process took place. He had also had appointments with Occupational Health on 30 October 2017 and 13 November 2017, the latter on the morning of the appeal hearing, for parts of which the person who would be the A380 manager if the Claimant transferred was also in attendance, in line with the Respondent’s usual procedure.[56]In both meetings the Claimant was confirmed as unfit for work, but that, with suitable support, he could return on a phased basis to begin with. In the Occupational Health Report issued following the second meeting, the Adviser noted that the Claimant was concerned about moving to A380 because there was little overtime there. The A380 Manager reported similarly that the Claimant had confirmed that he did not want to move to A380, also noting the overtime issue, and also that the Claimant had said that he did not know anyone in A380 and that the A380 management did not know his issues. We also noted that the Claimant made reference to a lack of overtime in A380 in text exchanges with a colleague at the time. The Claimant commented further that he did not feel he could move because he felt as though he could not trust anyone. He also referred to specific restrictions on his work in A330 due to a hip condition.[57]Mr Agnew adjourned the hearing for him to undertake some further investigations. Having undertaken those investigations, which included speaking to the Claimant’s Trade Union Representative regarding the advice given to the Claimant about handing in the grievance, Mr Agnew reconvened the hearing on 17 November 2017 to inform the Claimant of his decision. Like Mr Bolton, Mr Agnew did not provide the Claimant with copies of the statements gathered from his further investigation.[58]Mr Agnew provided his responses to the points raised by the Claimant in his appeal and ultimately confirmed that he was satisfied that Mr Bolton’s decision had been reasonable, including the move from A330. He noted that it was clear from the Occupational Health Report, and the information provided by the A380 Manager, that the Claimant would not move to A380, although we observed that Mr Agnew did not put the move to the Claimant as an ultimatum, i.e. that if he did not move he would be dismissed. The Claimant commented that he was not well enough to move.[59]Mr Agnew concluded by saying that in the circumstances he believed that dismissal for gross misconduct was reasonable, and in addition that he thought the employment relationship had been broken by the Claimant’s behaviour. He confirmed that the Claimant was dismissed with immediate effect without notice. He confirmed that decision in a subsequent letter.[60]In terms of other facts relevant to our decision, we noted that the Claimant was not entirely clear as to when he first took legal advice, indicating at one stage that it was March 2018, which we did not consider was accurate, as contact with ACAS for the purposes of Early Conciliation was made in early February 2018, but at one stage he said that it was earlier than that, and we concluded that the Claimant had received advice before contacting ACAS.[61]We also noted that the Claimant had had advice from Trade Union Representatives, which included full time officials, during the disciplinary processes, and that that advice continued after he was dismissed. We also noted that the Claimant took advice from his father and undertook internet research on his position
Conclusions
[62]Applying our findings and the applicable law to the issues identified at the outset, our conclusions were as follows. Protected disclosure[63]With regard to the question of whether the Claimant had made protected disclosures, falling within the scope of Section 43B ERA, we noted that the Respondent had confirmed that it accepted that the concerns raised by the Claimant about the use of hoover buddies did amount to protected disclosures, but disputed that the concerns raised about panels fell within the definition. The Respondent contended that the issues revolved around manufacturing processes and quality, and could not reasonably have involved a belief that health and safety was being endangered or that there had been a breach of legal obligation. However, the Respondent did not lead any evidence before us about that, or indeed any rebuttal to the Claimant’s evidence about the concerns he asserted he had raised.[64]With regard to the panels, we were satisfied that, notwithstanding that the concerns were raised verbally by the Claimant, and generally involved concerns about manufacturing processes and quality, they did convey information which also involved concerns about the health and safety of individuals, i.e. airline passengers, as the Claimant had identified that the flaws potentially made the wings unsafe.[65]We then had to consider whether the Claimant’s belief that health and safety was being endangered was reasonable. As we have noted he did not need to be correct and we noted the comments of the Respondents witnesses that there were several manufacturing stages to go through such that any identified defect would ultimately not have led to any health and safety issues, such that he may well therefore not have been right in his assertions. However, we noted that we needed to consider the issue from the perspective of the reasonable belief of the Claimant himself in his circumstances. He would not have had the knowledge that the Respondent’s managers had of the subsequent stages of the process, and therefore we were satisfied that the Claimant had had a reasonable belief that the health and safety of individuals was potentially being endangered.[66]With regard to the question of whether the Claimant reasonably believed that the disclosures he was making were in the public interest, we noted the guidance of the Chesterton case, and concluded that concerns about the impact of dust on a worker, or about flight safety, were very clearly matters of public interest, that the Claimant clearly believed they were, and that that belief had been reasonable.[67]We then moved to consider the Claimant’s two specific whistleblowing claims, detriment under Section 47B ERA and unfair dismissal under Section 103A ERA. Section 47B claim[68]With regard to the detriment claim, we had first to consider the preliminary issue of whether the claim had been brought in time. In fact, it was clear that it had not, whether by reference to two separate acts of the suspension in April 2017 and the final written warning and move in October 2017, or by reference to them both being part of a series of acts.[69]We noted Mr Pollitt’s argument, which he described as “novel”, that whilst dismissal is expressly held not to be capable of being a dismissal by the application of Section 47B(2) ERA, dismissal could nevertheless be classed as a similar act to the final written warning and the transfer, and therefore could be considered to be in time applying Section 48 ERA. However, we felt that that would fly in the face of the express provision of Section 47B(2), that dismissals are distinct from detriments, and therefore we did not accept that argument. The question for us therefore was whether it had been reasonably practicable for the claim to have been brought in time, in the form of contact with ACAS for the purposes of Early Conciliation.[70]As we have noted above, the Claimant was not aware that what he was doing was raising concerns on a whistleblowing basis until after he was dismissed, and we accepted that. However, as we have also noted, the Claimant was not entirely clear as to when he first took legal advice on his claims, but we considered that he did so before making contact with ACAS for the purposes of Early Conciliation in early February 2018.[71]As we have also noted, that the Claimant had had advice from Trade Union Representatives, which included full time officials, during the disciplinary processes, and that that advice continued after he was dismissed. We also noted that the Claimant took advice from his father and undertook internet research on his position. We also noted that the Claimant had been someone who was assiduous in advancing his position during the internal processes, producing detailed and comprehensive documents at all stages.[72]As noted in Porter -v- Bandridge, the test is not whether a claimant knew of their rights, but whether they ought to have known of them, and as pointed out in the Dedman case the question must be asked as to what were the Claimant’s opportunities for finding out that he had rights.[73]In our view, from his own efforts and those of those advising him, the Claimant ought reasonably to have known about his rights within the primary time limit, which would have expired on 16 January 2018. We therefore considered that it had been reasonably practicable for him to have progressed his detriment claim in time, and as he had not, the claim fell to be dismissed. Section 103A claim[74]We then moved to consider the Claimant’s remaining whistleblowing claim of unfair dismissal pursuant to Section 103A ERA. As we had concluded that protected disclosures had been made, the key question for us was whether they were the reason or principal reason for his dismissal, i.e. whether the dismissal was caused or principally caused by the disclosures.[75]We noted that the evidence of Mr Agnew, and indeed the evidence of Mr Jones and Mr Bolton at earlier stages, was that they were unaware of any of the specifics relating to the Claimant’s concerns, only that they understood that complaints had been raised by the Claimant. They were not the direct recipients of any of the Claimant’s claimed disclosures.[76]We noted that the Claimant contended that the three individuals would have been told by those to whom he raised his concerns that he had done so, but we saw no evidence to suggest that that had happened, and certainly Mr Agnew, as a particularly senior manager, would not have needed to be informed in any detail about operational matters, and he confirmed in his evidence that it was his practice to let his managers, indeed it seemed to us, to expect his managers, to deal with such matters without reference to him.[77]We noted also that the Claimant felt that the three managers would have been aware of his concerns by virtue of the documents they considered during the processes. Whilst we have already concluded that the Claimant’s detriment claim should be dismissed, we noted that that could not be said of Mr Jones in relation to the events of 10 April 2017, as the Claimant’s grievance was not raised until 11 May 2017.[78]Even in relation to Mr Bolton and Mr Agnew, we did not see that the Claimant’s disclosures were, in any sense, evident from the documents. The only reference to health and safety in the Claimant’s six page grievance is at the start where he refers to having highlighted the lack of awareness to certain health and safety measures, which, applying Cavendish Munro -vGeduld, could not itself amount to a disclosure of information.[79]We did not consider there was anything within the documentation produced at any stage of the internal processes which would have led a reader to conclude that the Claimant had made protected disclosures, and we noted that neither the Claimant nor any of his Trade Union Representatives made any reference to a connection of the disciplinary action against him with any prior disclosures. Nor did we consider that there was any hidden influence on the part of Mr Haselden or anyone else which caused or influenced the dismissal decision.[80]We also noted that Mr Bolton did not actually dismiss the Claimant and, had he been motivated to act against him because of any protected disclosure, then he would have done so. Similarly, Mr Agnew’s initial approach was to confirm Mr Bolton’s decision, i.e. not to dismiss. He only dismissed the Claimant due to what he considered to be a refusal to move departments.[81]Overall therefore, we were not satisfied that the Claimant’s disclosures were the reason for his dismissal, and his claim under Section 103A failed. We observed in passing that had we allowed the Claimant’s detriment claim to proceed it would also have failed for the same reason. Wrongful dismissal[82]Before turning to the ordinary unfair dismissal claim, we considered the Claimant’s wrongful dismissal claim. We noted in that regard that we were to assess objectively whether, on balance of probability, the Claimant had committed an act or acts of gross misconduct in relation to the incidents of 8 April 2017 and 11 May 2017. We noted the direction provided by the Westwood case that we needed to consider the character of the conduct and whether it was reasonable for the Respondent to regard the conduct as gross misconduct.[83]With regard to the events of 8 April 2017, we noted that the Claimant made much of the fact that Mr Haselden had said that the Claimant had sworn during this exchange, which he had denied and which the witness, the contractor, had not confirmed, albeit he had not been directly asked about that. We observed that it was likely that the contractor did not reference swearing as it would have been fairly commonplace in the workplace and therefore not something which would necessarily be remarkable. Regardless of whether swearing was involved or not, as we have noted above, we concluded on balance the Claimant had acted in a way which involved elements of insubordination and aggression.[84]With regard to the events of 11 May 2017, whilst we noted that the Claimant had been advised by his Trade Union to give the grievance to Mr Haselden as his Manager, the choice of when and how to do that was the Claimant’s alone. We did not consider that the Claimant went out of his way to hand over the grievance in a way which caused embarrassment to Mr Haselden, as there were more embarrassing ways in which he could have done so, for example at larger team meetings. Nevertheless, we considered that the Claimant was aware, or certainly should have been aware, that handing the grievance over to Mr Haselden and insisting he sign it in a busy office could cause him some embarrassment.[85]The question for us then to consider was whether those acts of misconduct, either individually or collectively, amounted to gross misconduct, i.e. fundamentally breached the employment contract, but we did not consider that they did.[86]We noted, in relation to the 8 April 2017 incident, that Mr Haselden had not taken any action in response to it, whereas he had taken action, along with Mr Jones, in relation to the not dissimilar events of 10 April 2017. We therefore concluded that, whatever the level of insubordination and/or aggression, Mr Haselden had not, at the time, considered the event to be so serious as to justify action, let alone dismissal.[87]With regard to the event of 11 May 2017, whilst we have noted that embarrassment was caused to Mr Haselden by the Claimant’s actions, we did not consider that that was significant enough to lead to a conclusion of gross misconduct. We noted the Claimant’s unprompted indication in the disciplinary hearing before Mr Bolton that he would apologise for any embarrassment caused.[88]Overall therefore, we did not conclude that the two incidents, individually or collectively, were so serious as to fundamentally breach the contract and we concluded therefore that the Claimant had been wrongfully dismissed. In that regard, any dismissal should have been with notice, which, in the Claimant’s case, due to his length of service, was the maximum statutory amount of 12 weeks. Section 94 claim[89]Turning to the Claimant’s ordinary unfair dismissal claim, we first had to consider the reason for dismissal and whether it was potentially fair. We noted that the Respondent had advanced two reasons for the Claimant’s dismissal; conduct and some other substantial reason, both of which are potentially fair reasons. We also noted that, applying the long established guidance provided by the Abernethy case, the reason for dismissal is the set of facts which led the employer to dismiss the employee.[90]We therefore looked closely at Mr Agnew’s conclusions in his letter rejecting the Claimant’s appeal, because it was that letter which confirmed the dismissal. Mr Agnew commenced by saying that Mr Bolton had correctly assessed the Claimant’s actions as amounting to gross misconduct and went on to say, in the circumstances of the Claimant’s apparent refusal to move to A380, that dismissal for gross misconduct was reasonable. However, he went on immediately to say that, in addition, he believed that the employment relationship was broken and that that had arisen from the Claimant’s behaviour and his unsubstantiated accusations against management.[91]We noted that the Respondent’s Disciplinary Policy expressly provided that a disciplinary sanction cannot be increased on appeal, albeit we also noted that Mr Agnew had felt that, as the sanction imposed by Mr Bolton had been a combined one, i.e. a final written warning and a move, if one element fell away, the sanction could be readdressed.[92]Overall however, we concluded that the set of facts which primarily led Mr Agnew to dismiss the Claimant were his apparent refusal to move to A380 and what Mr Agnew perceived as a breakdown in the employment relationship, i.e. that the reason for dismissal was some other substantial reason and not conduct.[93]We then considered whether dismissal for that reason was fair in all the circumstances, and concluded that it was not.[94]We noted that the Claimant had indicated that he did not wish to move to A380, albeit that his reasons for not wanting to move varied. We also noted that, at that stage, the Claimant was signed off work and was suffering from, and being treated for, anxiety and depression, although the occupational health advice did not indicate that, due to his illness, the Claimant could not move to A380.[95]Acutely, we noted that at no time did Mr Agnew make it explicitly clear to the Claimant that, in the event that he refused to move to A380, the alternative was dismissal. Mr Agnew therefore did not give any time for the Claimant to absorb the implications of that, and to discuss it with his Trade Union and his family. Nor did Mr Agnew give the Claimant any indication that the move would take place following his return to being fit to work, which we anticipated would ultimately have been the Respondent’s position.[96]We considered that a reasonable employer acting reasonably in the circumstances would have made the position more starkly clear to the Claimant and, particularly when the Claimant was suffering with stress and anxiety which may have impacted on his ability to take a dispassionate approach to matters, would have given the Claimant time to confirm his position in light of such a stark clarification. We therefore concluded that the decision to dismiss was outside the range of reasonable responses in the circumstances and therefore that the dismissal was unfair. Adjustments to compensation[97]Turning to remedy matters, in considering the overarching principles and not detailed calculations, we had three matters to consider; Polkey, contributory conduct, and any uplift due to failures to comply with the ACAS Code.[98]We observed in passing that, having concluded that the reason for dismissal was some other substantial reason and not conduct, Section 86 ERA provides that such a dismissal would have to have been on notice. However, as we concluded that the Claimant had been wrongfully dismissed, nothing turns on that in terms of compensation. Polkey[99]With regard to the question of whether dismissal would nevertheless have occurred, and occurred fairly at some point, and if so, when that would take place, or how likely it would be, i.e. the Polkey principle, we noted that the Claimant had, at the time of his appeal hearing, made it clear, albeit primarily due to his health at that stage, that he was not prepared to move to A380. We considered that had that been his unequivocal view, when on notice of the consequence of dismissal, then dismissal for that reason would, at that point, have been fair on the some other substantial reason ground. The question for us therefore was whether a fair dismissal on the some other substantial reason ground due to the Claimant’s maintained refusal to move to A380 would have been likely to have happened.[100]As we have noted, we did not consider that the point had been put to the Claimant in stark terms, to which, having been given some time to consider the ramifications and take advice, he could have given an equivocal answer one way or the other. However, we concluded that had that happened, the Claimant would have been just as likely to maintain his stance as to accept the move. He had made his unwillingness to move very clear and may well therefore have restated that position, but equally, if the stark reality of losing his job had been made clear to him, he may well have decided that a job which he felt was less than desirable was better than no job at all.[101]Overall therefore we considered that the Claimant’s compensatory award should be reduced by 50% to reflect the prospect that a fair dismissal would potentially have ensued. Contributory conduct[102]Turning to the question of contributory conduct, we noted that this could apply both to the compensatory award, applying Section 123(6) ERA, and to the basic award, applying Section 122(2) ERA; two similar, albeit not identical, provisions. We noted that the Court of Appeal, in Nelson -v- BBC (2) [1979] IRLR 346, had set out three factors which must be present for the compensatory award to be reduced. These were; that the Claimant’s conduct must be culpable or blameworthy, that it must actually have caused or contributed to the dismissal, and that the reduction must be just and equitable. We also noted that the EAT in Steen -v- ASP Packaging Limited (UK EAT/23/11) had outlined a very similar approach in relation to the basic award.[103]We considered that the outlined tests had been satisfied. We considered that the Claimant had been guilty of blameworthy conduct in the form of his initial behaviour in April and May 2017, but more significantly in the form of his indication in November 2017 that he would not move to A380. In our view, that conduct contributed to the Claimant’s dismissal and we considered it would be just and equitable to reduce both awards as a result.[104]We noted the guidance of the Court of Appeal, in Rao -v- Civil Aviation Authority [1994] ICR 495, that it is permissible to make both a Polkey deduction and a contributory conduct deduction, but that in assessing the latter, the Tribunal should bear in mind the former.[105]We also noted the guidance outlined by the EAT, in Dee -v- Suffolk County Council (EAT 0180/18), that the two potential deductions should be assessed in turn, i.e. Polkey followed by contributory conduct, and then that the Tribunal should stand back and look at the matter as a whole to avoid double counting and to ensure that the final result was overall just and equitable.[106]Overall, our conclusions were that both the basic award and the compensatory award should be reduced by 50% to reflect the Claimant’s contributory conduct. In relation to the basic award that involved a straight forward halving of the award whatever it may be. In relation to the compensatory award however we made it clear that we were not talking about the deduction of the other half of the award, i.e. leaving the Claimant with nothing, but with a deduction of 50% from the remaining 50% of the compensatory award after the Polkey deduction has been made, effectively leaving the Claimant with 25% of his compensatory award. ACAS uplift[107]Finally, with regard to any uplift for breach of the ACAS Code, we noted that Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that in claims falling within Schedule A2 of the Act, which this claim does, and where the employee has unreasonably failed to comply with provisions of the ACAS Code, any compensatory award can, if the Tribunal considers it just and equitable, be increased by up to 25%.[108]In that regard, the Claimant contended that there were breaches of the ACAS Code by the Respondent in the form of the failure to provide documents to the Claimant, the failure to make it clear to the Claimant that a refusal to transfer to A380 would lead to dismissal, and the failure to grant a further appeal once the final written warning with transfer was changed to dismissal.[109]However, having concluded that the reason for dismissal was some other substantial reason, we noted the EAT decision of Phoenix House Limited - v- Stockman [2017] ICR 84, which made it clear that the ACAS Code does not apply to some other substantial reason dismissals. In the circumstances there was therefore no question of Section 207A of the 1992 Act applying and therefore no uplift fell to be considered.
Background
[1]The hearing was to deal with the compensation to be awarded following our judgment, delivered at the conclusion of the hearing in relation to liability heard over six days ending on 13 May 2021. That judgment confirmed that some of the Claimants claims succeeded, namely his claim of wrongful dismissal and his claim of unfair dismissal pursuant to section 94(1) of the Employment Rights Act 1996 (“ERA”).[2]With regard to the unfair dismissal claim, we concluded that the Claimant's basic award should be reduced by 50% due to his conduct before his dismissal. We also decided that the compensatory award should be reduced by 50%, applying the Polkey principle, with the balance being further reduced by 50% to reflect our conclusion that the dismissal was to an extent caused or contributed to by the actions of the Claimant.[3]With regard to the Polkey reduction, we had concluded that the Claimant's dismissal was unfair due to the Respondent's failure to make explicitly clear that the consequence of the Claimant's refusal to move to a different part of the Respondent’s operation would be his dismissal. We considered that, had the position been made clear, then there was a 50% chance that the Claimant would have refused, and that he would then have been dismissed fairly as a result.[4]With regard to contributory conduct, we considered that the Claimant had been guilty of blameworthy conduct in two ways. First, in the form of his initial behaviour in April and May 2017, which had led to the Respondent requiring him to move to a different part of its operation. Secondly, and more significantly, in the form of his indication, albeit not in circumstances where the consequence of the refusal had been made starkly clear, that he would not make the requested move.[5]We heard evidence from the Claimant and from Michaela Buchanan, the Respondent's Head of Social Policies and Industrial Relations, by reference to written witness statements and their answers to cross-examination questions and to questions from the Tribunal. We considered the documents in two small bundles to which our attention was drawn, which included a schedule of loss and a counter-schedule of loss, and we considered the parties' representatives’ submissions. Issues and law Wrongful dismissal[6]The Claimant was summarily dismissed, but we concluded that the misconduct of which the Claimant was accused was not so serious as to have fundamentally breached the contract and to have justified summary dismissal. We concluded that any dismissal of him should have been with notice.[7]We observed in the Reasons for our Judgment that the amount of notice in the Claimant's case, due to his length of service, had been the maximum statutory amount of twelve weeks. We noted, however, that the Respondent, in its counter-schedule of loss had stated that notice was four weeks. We therefore needed to decide the appropriate period of notice, and to assess whether any mitigation occurred during that period. In the event, the Respondent conceded at the hearing that the notice entitlement was indeed twelve weeks. Unfair dismissal[8]First, with regard to the basic award, section 119 ERA notes that a basic award is to be calculated by determining the period ending with the effective date of termination, during which the employee had been continuously employed, and then by reckoning backwards from the end of that period, the number of years of employment falling within the period. The section then provides for the calculation of an appropriate amount for each of those years of employment. We noted in this case that there was an agreed position as to the period of continuous employment and the appropriate amount.[9]With regard to the compensatory award, section 123(1) ERA provides that the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the Claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.[10]Section 124(1ZA) ERA provides that the amount of a compensatory award shall not exceed either a specified maximum, or an amount equivalent to 52 weeks’ pay. In this case, it was accepted that the maximum amount of compensation was a sum equivalent to 52 weeks’ pay and that that sum was £43,479.16.[11]The key element for us to consider for the purposes of our assessment of the compensatory award under section 123(1) was whether the loss sustained by the Claimant in consequence of the dismissal was loss that was attributable to action taken by the employer. The Claimant has not worked since his dismissal in November 2017, and has not sought work during that period, contending that he was not in a position to do so due to his ill-health, which he says was caused by the dismissal. The Respondent contended that the Claimant’s ill-health was not a consequence of the dismissal. Three cases have provided guidance in respect of the approach to be adopted by a tribunal in those circumstances.[12]In Dignity Funerals Ltd v Bruce [2005] IRLR 189, the claimant, who had been dismissed for gross misconduct, was diagnosed with reactive depression, a condition from which he had also suffered for five years before dismissal. The Court of Session noted that the tribunal should have decided “whether the depression in the period after the dismissal was caused to any material extent by the dismissal itself; whether, if so, it had continued to be so caused for all or part of the period up to the hearing; and, if it was still caused at the date of the hearing, for how long it would continue to be so caused”. 13. in R and M Gaskarth v Mooney and anor (UKEAT/0196/12), an employment tribunal found that the claimant and her husband were unfairly dismissed when their contracts, under which they had been employed as live-in pub managers, were terminated with immediate effect and they, along with their four children, were required to leave the premises. The loss of her job and home caused the claimant to develop depression, rendering her unfit for work. Independently from the depression, the claimant also began to suffer from severe abdominal pain caused by hydronephrosis and gallstones. At the date of the remedies hearing over a year later, the claimant was still unable to work: she was awaiting surgery for her physical conditions and continued to suffer from depression. The tribunal concluded that the claimant’s inability to work “was attributable in no small part to the Respondent’s opportunistic and unscrupulous actions” and awarded her full loss of earnings to the date of the remedies hearing and six months beyond.[14]The EAT upheld the tribunal’s award upon appeal. It noted that the medical evidence before the tribunal did not set out the extent to which the claimant’s psychiatric symptoms on the one hand and her physical symptoms on the other had caused her absence from work at any particular time. Although ‘in a perfect world’ or in a case involving ‘greater stakes’ it might have done so, the EAT held that the evidence supported the tribunal’s conclusions that the claimant’s depressive condition was caused by the dismissal and that the claimant’s absence from work was ‘in no small part’ attributable to that condition. There was no evidence that the claimant’s depression had improved such that she would have been fit for work had it not been for her physical complaints. Although the tribunal had failed to ask whether the claimant’s unfitness for work was ‘to any material extent’ caused by her dismissal, the test established by the Court of Session in Dignity Funerals Ltd, its finding that the claimant’s unfitness for work was ‘in no small part’ so attributable was, if anything, a more stringent application of that test. Therefore the tribunal could not be criticised for failing to apply the correct test.[15]In Acetrip Ltd v Dogra (UKEAT/0238/18), the EAT provided a framework for determining how compensation should be assessed where the Claimant alleges that the employer’s actions, including dismissal, have caused, contributed to or exacerbated his or her ill health.[16]The EAT identified a number of different permutations. At one extreme, even if a previous illness had run its course by the time of dismissal, a further illness following dismissal might be found to be wholly attributable to it. At the other extreme, a dismissal might have no additional impact on a previous indisposition or ill health, which might simply continue before and after, exactly as it would have done regardless of the dismissal. That was easy to imagine, for example, in a case where the pre-dismissal absence is caused by a physical injury that merely continues post-dismissal.[17]The EAT went on to note that, between those extremes, there will be cases where the dismissal is found to have exacerbated or prolonged a pre-existing illness. The task of the employment tribunal in such a case is to assess as best it can what difference the dismissal has made, compared with how matters would have unfolded had there been no dismissal, and hence to identify the additional loss or impact attributable to the dismissal itself. It also noted that, in principle, it would make no difference to the tribunal’s task that the original illness was caused by earlier conduct by the employer which then goes on to carry out the dismissal. The question is whether the pre-dismissal conduct and the act of dismissal are part of the same indivisible act or are two separate and successive acts with distinct impacts.
Findings
[18]Our findings relevant to the remedy issue we had to decide, on balance of probability, were as follows.[19]As we have noted above, the focus was on the Claimant's ill-health, and within the bundle there were three documents which provided medical evidence, the contents of which were not disputed.[20]The first was an internal report from the Respondent’s Occupational Health Department, of an assessment of the Claimant on 13 November 2017, a few days before his dismissal. That noted that the Claimant was unfit for work in any capacity, and that, at the time, it was difficult to advise when he would be likely to be fit to resume work. It confirmed, however, that, in the occupational health advisor's opinion, with suitable support in place, the Claimant could return to work on a phased basis to begin with.[21]The second document was a psychiatric report commissioned by the Claimant's solicitors for the purposes, it appeared, of a personal injury claim and not for the specific purposes of his tribunal claim. It was received in March 2020.[22]The report, by a consultant psychiatrist, Professor Turkington, referred to the Claimant making a claim for damages arising out of occupational stress as a result of his employment with the Respondent. The report described the Claimant's symptoms, including; insomnia, feelings of resentment and hatred, inability to switch off, anxiety and low mood.[23]The report noted that the Claimant had become snappy and angry at the start of 2017, and he had been prescribed citalopram and then sertraline, with the dosage being increased to 200 mg per day, and that the Claimant was also prescribed amitriptyline. It also noted that the Claimant had seen a counsellor at that time, but that that had not helped.[24]The report recorded that the Claimant had been extremely emotional since his dismissal, had become very socially avoidant, and that any email contact about the case would cause his anxiety to peak. It noted that the Claimant’s anxiety had been helped to a degree by taking diazepam and zopiclone for brief periods.[25]The report recorded the Claimant's description that, for the first eighteen months after his dismissal, he had been extremely tearful, angry and anxious, and since then had developed more in the way of anger and anxiety and less in the way of sadness. The report also described the Claimant's partner as saying that the Claimant was gradually getting worse, and that he would not leave the house in case he met someone from his former work.[26]The report recorded the Claimant's previous medical history and noted that there had been no prior history of mental health, mental illness or treatment of any kind, but that anxiety, low mood and anger had been reported from April 2017 onwards, initially diagnosed as moderately severe depression and moderately severe anxiety.[27]It was recorded that, in April 2019, the Claimant was noted to be more stable in mood and less anxious, it being noted that the medication was working, but, by July 2019, he was noted to be depressed again, being diagnosed with severe depression and severe anxiety. There were suicidal thoughts at the time, and a safety plan was devised by him.[28]Those symptoms persisted and, by the end of 2019, the Claimant was prescribed 200mg sertraline for depression and anxiety, 50mg amitriptyline for insomnia, and 40mg three times a day propranolol for anxiety. The Claimant's then condition was contrasted with his earlier description as being someone who was happy and sociable.[29]Prof Turkington described the Claimant as being in an extremely emotional state at the time of the interview, with poor self-confidence and limited gaze. He concluded that, in his opinion, the Claimant had suffered a psychiatric injury and that he had suffered a severe adjustment disorder with mixed emotions, anger, sadness and anxiety of three years’ duration, and that he had also suffered a generalised anxiety disorder of that duration. He recorded that the two disorders were present from November 2017 at that level of severity. He noted that the Claimant at that time was unable to work or pursue his hobbies and was struggling to fulfil his role as husband and father.[30]With regard to the causation of the injury, Prof Turkington recorded that the psychiatric injuries had been caused by the asserted breaches of the duty of care and, on balance of probabilities, had those not arisen he would not have become psychiatrically ill. He recorded that "the trigger for the emergence of his injuries was being forced to stamp wing components which he did not believe were safe, and in their current severe form the trigger was his dismissal". Prof Turkington concluded that, in his opinion, twenty sessions of cognitive behavioural therapy would be successful once the litigation had concluded.[31]The third document was a supplemental report from Prof Turkington dated 1 February 22, commissioned for the purposes of this hearing. The content of the report recorded very similar matters to the March 2020 report. It also noted the Claimant's severe rumination about the fact that he had been unfairly dismissed, which made him extremely angry and upset and tearful, and recorded the Claimant's description of flashbacks to the dismissal meeting and nightmares where he would relive the original dismissal meeting.[32]Prof Turkington also recorded the Claimant's description of severe social anxiety, that he did not want anyone to ask him how he was and therefore simply avoided meeting other people. He recorded the Claimant's description of irritability with his children, severe insomnia and poor memory.[33]As far as treatment was concerned, the report did not record any medical intervention between March 2020 and October 2021. Then, it recorded the Claimant as suffering from low mood and anxiety and PTSD symptoms with passive suicidal thoughts. It noted that the Claimant was asked to self-refer for a psychological treatment assessment, which he did, and that, in November 2021, he was switched from 200mg of sertraline to 225mg of highdose venlafaxine. He was then placed on the waiting list for EMDR/traumafocused CBT. He continued to take propranolol and amitriptyline.[34]Prof Turkington noted that the Claimant presented in a deteriorated state from the previous appointment in March 2020. He concluded that, in his opinion, the Claimant had developed an adjustment disorder and generalised anxiety disorder the time of his previous report, and that the Claimant's mental health had deteriorated since the Tribunal hearing in May 2021. He recorded that since that time the Claimant had satisfied criteria for post-traumatic stress disorder, a moderate depressive episode, and a severe prolonged adjustment disorder with mixed anxiety and anger.[35]He confirmed that he considered that there were no other factors preventing the Claimant from returning to work or seeking employment elsewhere, and concluded that, in his opinion, the Claimant would recover with appropriate treatment. His opinion was that the Claimant would be able to return to work nine months after the remedy hearing and the commencement of treatment, and felt that there would be a graded return to work at that point but that he would be able to get back to full employment.[36]The Respondent did not dispute the facts of the Claimant's illness but questioned the causation, contending that it arose from earlier events within the workplace and not from the dismissal.[37]In that regard, we noted the occasions the Claimant had consulted his GP in relation to his mental health. They commenced in the early part of 2017, when he was still at work, but then peaked in late 2017 at the time of his dismissal with his medication being expanded and increased in dosage at that point. That situation appeared to remain through 2018 and 2019.[38]The Claimant explained the lack of medical consultation through 2020 and for most of 2021 on the impact of the Covid-19 pandemic and on the fact that he was simply taking medication and did not need regular contact with his GP. We noted that the medication had then been changed and increased in late 2021.[39]In terms of the causation of the Claimant's illness, whilst we noted the fact that the onset of the Claimant's mental health conditions had been in the early part of 2017, i.e. before he had been dismissed, we noted the conclusion of Prof Turkington in the March 2020 report that the trigger of the then severe form of the Claimant's injuries had been his dismissal. We saw no reason not to accept that.[40]We also saw no reason not to accept Prof Turkington's opinion in relation to the Claimant's likely recovery i.e. that he would need to get through the remedy hearing and then to start a course of cognitive behavioural therapy, that he would then benefit from that, after a period of some nine months, moving from that point on to a gradual return to work.[41]The Claimant contended that, and it was not disputed by the Respondent, that there was an 18-month waiting list for CBT therapy and that he had been on that list for some two months. We also accepted the Claimant's evidence that the cost of private CBT therapy would be some £3000.[42]In terms of possible mitigation, had the Claimant been able to work, we noted Ms Buchanan's evidence, which was not challenged, that there had been a number of options in the local area in relation to work for which the Claimant had been suited. We also noted however that, until May 2021, the Claimant had had a gross misconduct dismissal on his record.[43]The only income received by the Claimant in the period since his dismissal had been state benefits, initially employment support allowance and then, additionally, personal independence payment. He had received a total of £32,749.45 in the period from 24 November 2017 to 23 February 2022.[44]As noted the Claimant’s gross income at the time of his dismissal had been £43,479.16. It was accepted that there had been increases of 3.2% in May 2018 and May 2019, and that here had been no subsequent pay rises.[45]In addition, the Claimant had been a member of the Respondent’s pension scheme, in which benefits accrued on a defined contribution basis, referable to an employer contribution of 2% of the employee’s gross basic salary, and on a defined benefit basis, with accrual of 1/100th of final salary for each year of service. Ms Buchanan confirmed that, whilst that pension scheme had been closed to new entrants, it remained open for longer standing employees, which included the Claimant at the time of his dismissal.
Conclusions
[46]Taking into account our findings and the applicable law, our conclusions were as follows. Wrongful dismissal[47]We noted the Respondent's concession that the applicable notice period was twelve weeks. We further noted the Claimant's ill-health at that time, and saw no reason to conclude other than that the Claimant was not capable of mitigating his loss during that period. Consequently, the Respondent was required to pay the Claimant in full in respect of his notice.[48]It was agreed between the parties, on the basis of a net weekly pay of £627.52, that a total net sum of £7,513.28 would need to be paid. However, in view of the fact that the wrongful dismissal compensation falls to be included, along with the unfair dismissal compensation, in the application of the tax-free £30,000 sum, we considered it appropriate to order the payment to be made on a gross basis, i.e. £10,033.56. That will mean that, after the deduction of tax, the Claimant will be left with the appropriate net sum, and there will be no danger of the net sum being further reduced by any application of tax. Unfair dismissal Basic award[49]As we have noted, the Claimant’s length of service and relevant pay were agreed between the parties, leading to a basic award of £5134.50 which, following the 50% reduction for contributory conduct, led to a basic award of £2,567.25. Compensatory award[50]We noted the guidance provided by the Dignity Funerals, Gaskarth, and Acetrip cases, that we needed to be satisfied that the dismissal was a material cause of the Claimant's conditions. In our view, the medical reports from Prof Turkington, whilst they noted that there had been some prior issues and that the Claimant had been unwell before the dismissal, made it clear that the dismissal had a significant, certainly more than material, impact on him. As we have noted, the March 2020 report described the Claimant's injuries, in their then form as having been triggered by his dismissal. We were therefore satisfied that the Claimant's illness flowed from his dismissal to the required material extent.[51]The medical evidence was then clear that the Claimant had been unwell since his dismissal, that he remained unwell, and would continue to be unwell until he had followed the course of CBT and then for a further nine months. That was either going to be after a 16-month wait for the therapy to be provided on the NHS, or would take place fairly promptly, if payment for the therapy privately was factored in. We considered it would be better overall for the Respondent if we applied the latter approach and factored in the expense of £3000 in respect of the CBT on a private basis, as opposed to factoring a further 16 months of no income.[52]We found it somewhat difficult to understand why the Claimant had not gone on to the waiting list for CBT at an earlier date, but that was not explored in evidence. We therefore considered it would be reasonable to proceed on the basis outlined in the medical reports, that the Claimant currently remained unable to work, and even when he followed the course of CBT, would not be in a position to obtain income for a further nine months, i.e. roughly the end of 2022.[53]We also then accepted the Claimant's representative submissions that the Claimant would take a period of time to get back to full earnings. The Claimant's representative suggested that this would be a period of two years with his wages increasing from 25% of his former level, to 50%, and then 75% before reaching the full level, with an average of 50% being applied over that period. We considered that that may potentially be an over-optimistic view, bearing in mind the Claimant's comparatively high level of earnings with the Respondent, and that it may take longer for him to reach that level. However, we were satisfied that the overall approach suggested by the Claimant's representative was reasonable.[54]Overall, factoring in the salary losses, both past and future (nine months of only state benefits and then 50% of his final salary for the following two years), and the amount of past and future pension loss, which the Respondent agreed, we considered that the assessment in the Claimant's schedule of loss of past and future losses, which took into account the Claimant’s income from state benefits of £200,924.24 (£233,573.69 before the deduction of state benefits), was accurate. Taking into account that 75% of that figure was to be reduced to reflect the Polkey reduction and the contributory conduct reduction, that still left losses in excess of the statutory maximum. We therefore considered it appropriate to order the Respondent to pay the Claimant the maximum sum possible in respect of the compensatory award, i.e. £43,479.16.[55]The Claimant, in his schedule of loss, contended that that sum needed to be grossed up to reflect the fact that the Claimant will be taxed on the excess over £30,000. However, the Employment Appeal Tribunal, in Hardie Grant London Ltd v Aspden (UKEAT/460/11), noted that to apply the statutory cap and then gross up would be incorrect. In that case, the EAT said, “In calculating the loss of earnings flowing from an unfair dismissal, the calculation is based on the Claimant's net (i.e. after tax) earnings. Where the loss exceeds £30,000, the maximum tax-free termination payment figure, it is appropriate to apply the ‘reverse-Gourley principle’, so as to ensure that the Claimant receives the appropriate net loss figure. However that exercise comes before, not after, the application of the cap imposed by s.124(1)”.[56]In the circumstances, the compensatory award, although partly taxable, will be the maximum permitted amount, in this case £43,479.16.[57]Although the Hardie Grant case related to the compensatory award, bearing in mind that section 119 ERA also, indirectly, operates a cap on the basic award, we considered it appropriate to adopt the same approach, i.e. not to gross up the basic award, even though it will fall to be taken into account for the purposes of the £30,000 exemption. As we have noted above however, in order to avoid any confusion, we have ordered the wrongful dismissal compensation to be paid on a gross basis, i.e. such that, after the deduction of tax, the Claimant will be left with his net entitlement. Recoupment[58]In view of the fact that the Claimant has been in receipt of state benefits, the Employment Protection (Recoupment of Benefits) Regulations 1996 will apply to the unfair dismissal compensation. For the purposes of those Regulations, the following information is to be noted:a. Total monetary award1 - £53,167.262b. Prescribed element - £34,980.023c. Prescribed period – 17 November 2017 to 23 February 2022d. Excess of total monetary award over prescribed element - £18,187.24