Employment Judge BraceIn person for claimantDate 16 December 2021
JUDGMENT
[1]The Respondent’s application to amend its ET3 response to claim that the Claimant resigned and was not dismissed is granted.[2]The Claimant was unfairly dismissed by the Respondent.[3]A reduction in the compensatory award limiting the period of loss for unfair dismissal to two weeks will be made under the principles in Polkey v AE Dayton Services Limited 1988 ICR 142.[4]The Claimant contributed to his dismissal to the extent of 80% to be applied to the basic and compensatory award for unfair dismissal.[5]The Claimant’s complaint of breach of contract is not well-founded and is dismissed.[6]The claim in respect of holiday pay is dismissed on withdrawal by the Claimant.
REASONS
[1]The hearing was conducted as a hybrid hearing with the Judge, the clerk and the interpreter, Ms Zhang in person in the hearing venue and the Claimant, his support, the Respondent’s representatives and witnesses participating by video (CV). As a result of some connectivity issues, the hearing did not commence until 30 minutes after the listed time, but these were the only connectivity issues for the duration of the two day hearing of note.[2]The Claimant is a litigant in person and was provided with an interpreter and who provided interpretation for all aspects of the hearing, including case management as well as when the Claimant was giving evidence. The Claimant’s brother-in-law also participated by video, providing support, but at an entirely different physical location to the Claimant.[3]The Respondent was represented by Ms Wood, who described herself as a litigation consultant and who had recently been instructed by the Respondent.[4]There was a Tribunal bundle of approximately 380 pages that had been prepared by the Claimant and references to the hearing bundles appear in [ ] within these written reasons.[5]At the commencement of the hearing, the Respondent objected to a number of documents being included within the Bundle, documents which they contended were privileged and related to settlement discussions. By consent of the Claimant, these were removed from the Bundle (documents [87, 88, 105 and 107]. Claims and Issues[6]The Claimant asserted in his ET1 claim that he had been dismissed on 26 July 2020. He had brought claims of unfair dismissal and wrongful dismissal [8].[7]Whilst in the ET3 Response Form [18] the Respondent disputed that the dismissal was unfair, it asserted that the dismissal of the Claimant on grounds of gross misconduct.[8]The issues in the claims had been discussed by Judge Ryan at the case management conference on 17 February 2021 [178] when the Claimant had accepted that Respondent had dismissed for misconduct. I took the opportunity to confirm with the parties that the claims and issues were as set out in the case management order and encouraged the Claimant to ensure that he had a copy of the list of issues before him when he crossexamined the Respondent’s witnesses.[9]The Claimant confirmed that he had been paid the full amounts due in respect of his holiday pay and that he was no longer pursuing that claim, which was withdrawn as a result. I confirmed that this judgment would dismiss that claim on withdrawal by the Claimant under Rule 52 Employment Tribunal Rules 2013.[10]The Respondent’s representative confirmed that the List of Issues were agreed by the Respondent and that there were no additional issues. Later, Ms Wood also confirmed that the misconduct relied upon were the matters set out in §14 ET3 Grounds of Resistance i.e. the threat / warning made by the Claimant to Ms Francis that he would chop or attack Mr Sam Warne with a knife, having displayed violent behaviour previously.[11]The Claimant also confirmed that the issues were correct but clarified that whilst he had originally wanted re-instatement or re-engagement, he was now only seeking compensation. Issues at §2.1-2.5 [185] of the List of Issues were therefore removed from the List of issues, as were the issues at §4 in relation to holiday pay.[12]The Respondent’s representative sought and was granted permission to ask additional questions of the Respondent’s main witness, Ms Francis, in relation to text messages that had been exchanged with the Claimant at the outset of his employment, relating to the particulars of employment. The Respondent also sought to ask additional questions in relation to the workconflict issues. As such matters had been dealt with in the witness statements already, permission was not granted to ask additional questions as part of examination in chief, but the Respondent’s representative was reminded that any issues of clarification could be picked up on reexamination of Ms Francis and the other Respondent witnesses.[13]When discussing timetabling, the Respondent confirmed that they would want half an hour of cross-examination of the Claimant (without accounting for translation time).[14]The Claimant confirmed that he had not prepared any questions to ask of the Respondent’s witnesses despite confirming that Judge Ryan had explained how a case proceeds. It then also became clear that despite having prepared an extensive bundle of some 380 pages, as well as a 16 page witness statement with over 100 paragraphs, the Claimant had done so with assistance and could not understand, and was unable to read, any of the documents written in English, including his own statement. He did not have with him a copy of any of the documents, again including his own witness statement, translated into Mandarin.[15]The Bundle was discussed and it was noted that many of the documents were not relevant. The critical documents were identified, and discussion with the parties took place to assess whether the hearing could proceed. After further discussion, I determined to postpone the hearing to the following morning to enable the Claimant to obatin a translated copy of his witness statement, the Respondent’s witness statement, Judge Ryan’s case management order and relevant documents in the bundle to enable the case to proceed the following morning.[16]I also directed that the Claimant attend the hearing venue in person the following day with Ms Zhang, the interpreter, and encouraged the Claimant to ensure that his support also attended with him in person if possible to assist him with documents in particular during his cross-examination of the Respondent’s witnesses.[17]The hearing re-commenced the following morning when at that point, Ms Wood confirmed that the Respondent’s case was that the Claimant had resigned and had that he had not been dismissed. This was contrary to the pleaded case and contrary to the matters she had agreed and discussed the previous day. She was informed that permission would need to be sought and the relevant principles on applications to amend was discussed with the Claimant. After a further adjournment, the application was made. After submissions from both parties, an oral decision was given granting permission to the Respondent to amend their response to plead that the Claimant resigned. Oral reasons were given to the parties on the day.[18]The additional issue to be determined was therefore whether the Claimant had been dismissed. The Claimant maintained that he had been dismissed, but that he was not challenging the reason for dismissal. The Respondent confirmed that they were relying on resignation as a complete defence to the unfair dismissal claim and were not relying on any alternative response in the event that the Tribunal found that the Claimant had not resigned.[19]I proceeded to hear evidence from the director and shareholder of the Respondent limited company, Ms Yanning Francis. Ms Francis confirmed that she did not require or desire an interpreter. I also heard evidence from Mr Samuel Warne and Ms Amelia King also on behalf of the Respondent. In addition, the Respondent produced a witness statement from Kasey John who did not attend as a witness. The tribunal explained that as Kasey John was not present, it would be given no or only limited weight. The Claimant had and took the opportunity to ask questions of the witnesses for the Respondent. Questions were also asked by the Tribunal.[20]The Claimant also gave evidence and was cross-examined by Ms Wood and asked further questions from me.[21]At the end of the hearing, both parties had the opportunity to sum up.[22]Whilst a timetable had been agreed at the outset, the time given for translation added considerably to the timetable and a reserved decision was required.
Facts
[23]The respondent is a limited company that was owned and operated as a Chinese take-way food restaurant in Cowbridge, by director and shareholder Ms Yanning Francis. It employed approximately 3 employees at the relevant times. The Claimant started his employment on 7 March 2016 and, at the time of his dismissal, he was employed as Kitchen staff/chef. He had held this post for four years.[24]The Claimant and Ms Francis had known each other prior to the Claimant’s commencement of employment having worked together in Cash and Carry. Ms Francis offered the Claimant a job working for her in the take-away and the Claimant was texted terms of employment by Ms Francis. Neither the Claimant nor Ms Francis has copies of the texts due to mobile phone device changes, but it was agreed in evidence from both the Claimant and Ms Francis that this had arisen and that the Claimant would be entitled to 4 weeks’ notice of termination. Other terms were also included in the texts including hours of work.[25]Whilst Ms Francis found the Claimant would become annoyed and anger easily in the workplace, the relationship between the Claimant and Ms Francis appears to have been without real issue until 2019, or certainly no issue that was in evidence before me.[26]This appears to have changed in 2019, during a time when Ms Francis was having issues in her domestic life. At this point, Ms Francis started to feel uncomfortable with the Claimant’s behaviour in the workplace. There has been a criminal investigation into allegations made to the police by Ms Francis after the Claimant had brought these tribunal proceedings, that the Claimant sexually assaulted her in the workplace, including by touching her leg whilst massaging her in October/November 2019.[27]Ms Francis also gave evidence in this hearing that whilst working for her the Claimant had shouted at her and called her names such as ‘fucking bitch’, ‘silly bitch’, ‘stinking bitch’ and say to her ‘fuck your mother’. On crossexamination, the Claimant did not deny that he had said such things, rather saying that he could not recall whether or not he had spoken to her in this way. That response led me to find that it was more likely than not that the Claimant had spoken to Ms Francis in this way.[28]I also heard evidence from two work colleagues of the Claimant, Mr Sam Warne and Ms Amelia King. Both gave clear evidence, which I accepted, that the Claimant would get very angry with Ms Francis, swearing and shouting at her. This further supported by finding that it was probable that the Claimant had spoken to Ms Francis in the manner alleged by her.[29]Mr Warne’s further evidence was that the Claimant had not spoken to him in the workplace since November 2019, when he and the Claimant had a verbal altercation resulting in the Claimant asking him outside for a fight. The Claimant denied this and, when on cross-examination he asked Mr Warne if this had happened, why had he not complained, Mr Warne responded that he had spoken to Ms Francis, who had confirmed to him that the Claimant had apologised to her and that he had agreed that they were going to ‘keep ourselves to ourselves and carry on’. The Claimant did not challenge this evidence. I accepted Mr Warne’s evidence as a result and found that it was more likely than not that the Claimant had threatened Mr Warne at this time.[30]On cross-examination, when it was put to the Claimant that all the Respondent’s witnesses had given evidence that he had a temper and was asked if that was correct, the Claimant responded ‘I do not have a temper all the time for nothing. I only have a temper when I am stressed with work and am busy’.[31]He admitted that he was aggressive at times in the workplace and to not communicating with work colleagues but sought to explain that this was because he was busy and also because of language barriers.[32]Whilst I decline to make findings of fact as to whether or not the Claimant had touched Ms Francis, as alleged in her police complaint, I did accept that the Claimant displayed an angry temper in the workplace and had historically threatened violence. The Claimant also made Ms Francis feel unsafe with his language and his temper and this was the working environment that the Claimant created for Ms Francis despite her being the owner/manager of the Respondent business. Incident.[33]On 25 July 2020, there was an incident when a dish was missing from an order being delivered by Mr Warne to a customer and had to be re-cooked. The Claimant’s evidence was that he believed that he was being blamed for the missed order and Ms Francis’ evidence was that she didn’t blame or accuse him for missing the order, that she simply wanted to get the order out to the customer.[34]This difference of opinion appears to have triggered an altercation later that evening. Both Ms Francis and the Claimant accept that the Claimant was very emotional. The Claimant was very upset and angry, believing he had been accused of missing a customer order. Ms King gave evidence that he was ‘having a go’ at Ms Francis. The Claimant shouted at Ms Francis and told her to ‘keep control of her dog’, referring to Mr Warne, or he would ‘grab a knife and chop him up’, or words to that effect still being upset at believing he had been blamed for the customer order.[35]The Claimant admits saying words to this effect, explaining on cross examination that when referring to ‘use a knife he meant ‘kill’. Whilst Mr Warne was not present when this conversation took place, he was told of it later that night by Ms Francis.[36]The Claimant went into work the following day. Ms Francis was not at the restaurant initially but later asked to speak the Claimant whilst he was preparing the food in the kitchen. What took place next is a matter of significant dispute and goes to the heart of the claim in this matter.[37]The Claimant’s position is that Ms Francis shut off the extractor fans in the kitchen and then ‘screamed’ at him, told him he was fired and that he was to leave the take-away immediately. His evidence was that in response to that, he asked for a letter confirming his dismissal and that he would go; that whilst Ms Francis was writing that letter, he was shaken and disorientated but that he carried on preparing the food and that when he was handed the letter, he left and after sitting in his car to calm down, drove home.[38]Ms Francis was concerned about what the Claimant’s reaction would be when she sought to speak to him about his behaviour the previous night. Her evidence is that when the Claimant went to the toilet she put away the knives before speaking to him as she was concerned about his use of them and fearing for her safety. The Claimant disputes this asserting that she would not have had enough time to do so and that she must have done this before he started work evidencing her intention to sack him.[39]Ms Francis’ evidence is that she entered the kitchen and asked the Claimant if he was free as she wanted to speak to him about what had happened the previous night. Her further evidence was that it was the Claimant who had ‘started yelling’ telling her that he would ‘keep his mouth shut from now on’. She told him that she felt unsafe working with him after the warning he had given the night before about Mr Warne and in response the Claimant started shouting again, told her that he was leaving and demanded a dismissal letter.[40]Whilst I found it likely that this was an emotionally charged discussion, I also found that it was more likely than not that the employment did not terminate at that point with any resignation from the Claimant but that the Claimant was told to leave and given notice to terminate by Ms Francis; that he was dismissed by Ms Francis during that conversation on the following basis:a. I did not consider the issue of when the knives were put away to be of significance or indicate that she had already decided to dismiss him. I accepted that Ms Francis was fearful of the Claimant and that this was a step she considered to prudent to take as a result of the Claimant’s behaviour the previous night;b. The ET1 had made clear, as had the Respondent’s representative when discussing the issues on the first day of the hearing, despite the late application for amendment that the Respondent had relied on the Claimant’s conduct as justifying its termination of the Claimant’s employment;c. The three hand-written letters of termination provided in the bundle [48, 311 and 312], different drafts written by Ms Francis that day, all refer to the Respondent giving the Claimant notice of termination and do not refer to the Claimant’s resignation;d. The letter of 31 July 2020, drafted by Ms Francis’ representative refers to the Respondent not being able to employ the Claimant any longer; ande. in response to a question from the Claimant about to why she had ignored him when he had tried to speak to her about the missing order, part of Ms Francis’ response to the question included ‘…… I tried to speak to him calmly and this is not the reason he got dismissed’.[41]The Claimant subsequently received a letter dated 31 July 2010 confirming immediate dismissal on 26 July 2020 and giving the Claimant a right of appeal. The Claimant did not appeal believing that there was no chance of re-instatement and subsequently issued these proceedings after entering into early conciliation on 26 July 2020 which ended on 24 August 2020.[42]For the purposes of the wrongful dismissal claim, the tribunal has considered its own view of the conduct of the Claimanr. On the basis of the Claimant’s admission that he had spoken the words alleged to Ms Francis, and on the basis of my findings that he had shouted at Ms Francis on 25 July 2020, I also found that the Claimant had displayed aggressive and hostile behaviour in the workplace to Ms Francis on 25 July 2020. Issues and Law[43]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the Respondent under section 95.[44]Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.[45]In this case the Respondent asserts that it did not dismiss the Claimant but that he resigned. The Claimant’s case is that he did not resign but was dismissed. He has always accepted that he was dismissed because of misconduct. Misconduct is a potentially fair reason for dismissal under section 98(2).[46]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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.[47]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827.[48]The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[49]If I concluded that the dismissal was procedurally unfair, I should consider what adjustment, if any, should be made to any compensatory award to reflect the possibility that the Claimant would still have been dismissed had a fair and reasonable procedure been followed, in accordance with the principles in Polkey v AE Dayton Services Ltd [1987] UKHL 8; Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Crédit Agricole Corporate and Investment Bank v Wardle [2011] IRLR.[50]I also agreed with the parties that if the Claimant had been unfairly dismissed, I would address the issue of contributory fault, which inevitably arises on the facts of this case.[51]The Tribunal may reduce the basic or compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) of the Employment Rights Act 1996. Section 122(2) provides as follows:a. 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.b. Section 123(6) then 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. Submissions[52]The parties did not make lengthy submissions:a. The Claimant inviting me to find that he was dismissed and that he was the only person in his family during a pandemic, he would not have resigned; andb. The Respondent submitting that the Claimant had a history of aggression and had conceded having a temper; that there was good reason for Ms Francis to take the Claimant’s threat against Mr Warne seriously and that it was more probable that the Claimant resigned and had asked for a dismissal letter. No other submissions on procedure, Polkey or contributory conduct were given. Conclusions Unfair Dismissal
Conclusions
[53]In applying my findings to the issues identified at the outset, I needed to initially consider whether the Claimant had been dismissed and if so, the reason for dismissal and whether it was potentially a fair reason for dismissal.[54]The Respondent has asserted that the Claimant was not dismissed but had resigned. The Claimant asserted that he had been dismissed but accepted that if I found that he had been dismissed, that the Respondent had dismissed for misconduct.[55]I was persuaded that it was unlikely that the Claimant would have resigned from employment during a pandemic, when he needed his job to look after his family and that, together with the reasons set out in §39 above, persuaded me on balance of probabilities that the Claimant was dismissed and he did not resign.[56]As the Claimant did not dispute that misconduct was the reason for dismissing him, and as this is a potentially fair reason for dismissal, I then moved on to the assessment of overall fairness.[57]On the issue of genuineness of the Respondent’s belief, did the Respondent reasonably believe that the Claimant committed the misconduct, i.e. behave in a hostile and aggressive manner towards the Respondent’s owner/manager, I find that they did.[58]Whilst the Claimant had argued that the allegations that Ms Francis had made to the police were in retaliation to these employment proceedings, I did not consider that any concerns held by Ms Francis regarding whether or not the Claimant inappropriately touched her, was the main or principal reason for dismissal. Rather, the reason for dismissal was the Claimant’s conduct on 25 July 2020.[59]There was no investigation and no disciplinary hearing prior to the decision to dismiss. The Claimant has suggested that this was a premediated decision by Ms Francis, as evidenced, he suggests by Ms Francis hiding the knives before he attended work on 26 July 2020. I did not make that finding, and I did not conclude that Ms Francis intend to dismiss the Claimant that day. Rather, I concluded that it was more likely than not that she intended initially to have a discussion and was fearful of the Claimant’s reaction to that. I also concluded that conversation between her and the Claimant on 26 July 2020 did escalate however and end with her dismissing the Claimant as a result of his conduct that day as well as the day prior.[60]There is a question in my mind of what more investigation was required in all the circumstances. However, I did not conclude that it was reasonable in these circumstances to have had no investigation. Whilst I concluded that Ms Francis did have proof of the misconduct, having been the recipient of the Claimant’s behaviour, this was a case whereby it would have been reasonable to have taken time to assess the Claimant’s explanation for the behaviour. She did not. The Claimant was not given an opportunity to cool down and reflect on the allegations and concerns, he was not invited to a disciplinary hearing where he could have responded to the allegations of conduct. Whilst the Claimant was invited to an appeal which might have rectified these failings, the Claimant did not appeal.[61]I find that no reasonable employer in the Respondent’s position would have dismissed without giving the Claimant an opportunity to respond to the allegations and explain their behaviour. Whilst the Claimant’s actions had been serious, a reasonable employer would have considered and assessed an explanation before determining sanction.[62]I have considered the size of the Respondent’s undertaking. This is a small employer owned and managed by Ms Francis. Within in the range of reasonable responses, the Respondent’s size and resources do not excuse the failure to undertake an investigation or excuse the unfairness in the management’s actions in this case.[63]I find therefore that the Claimant was unfairly dismissed by the Respondent within section 98 Employment Rights Act 1996. Polkey[64]I agreed with the parties that if I concluded that the Claimant had been unfairly dismissed, I would consider whether any adjustment should be made to the compensation on the grounds that if a fair process had been followed by the Respondent in dealing with the Claimant’s case, the Claimant might have been fairly dismissed.[65]In this exercise I am not assessing what I would have done, I am assessing what this employer would or might have done and must assess the actions of this employer before me, on the assumption that this employer would have acted fairly, even though I have found that they did not in this case.[66]No submissions were made by either party. I find that if the Respondent had properly undertaken a disciplinary hearing, the Claimant would still have been dismissed. In making that assessment I took into account how seriously Ms Francis in fact took his actions and I consider in this case there is a 100% chance that the Claimant would still have been dismissed and that the dismissal would have likely been in the range of reasonable responses.[67]However, I do find that this would have resulted in a delay in the decision to terminate the Claimant’s employment for the length of time that it would have taken the employer to hold a disciplinary hearing. On that basis, whilst I consider that the Respondent would still have dismissed, the decision to dismiss would have been delayed by up to two weeks whilst a disciplinary hearing was arranged.[68]Any unfair dismissal compensatory award would therefore be reduced to two weeks’ wages. Contributory Conduct[69]I also agreed with the parties that if the Claimant had been unfairly dismissed, I would address contributory fault which invariably arises on the facts of this case.[70]I have considered whether the measure of contribution should be 100%, but I take into account the personal circumstances of the Claimant and that the kitchen in a take-away was a stressful pressured environment, particularly during the pandemic. I find that the basis and compensatory awards should be reduced by 80% to reflect the Claimant’s culpability. Wrongful Dismissal[71]The Claimant was dismissed without notice and brings a claim in respect of entitlement to four weeks’ notice.[72]I must decide if the Claimant committed an act of gross misconduct entitling it to dismiss without notice. In distinction to the claim of unfair dismissal, which requires me to focus on the reasonableness of management decision, I must decide what decision I have made about the Claimant’s conduct and whether it was serious enough to terminate the employment without notice.[73]In the judgement of this Tribunal, that conduct could certainly be considered gross misconduct. It is behaviour which is likely to undermine the implied term of trust and confidence required to exist between employer and employee.[74]My findings at §40 are applicable to the question of whether the Claimant was guilty of conduct entitling the Respondent to dismiss without notice. I find on the evidence before me and set out above, and on the balance of probabilities that the Claimant displayed hostile and aggressive behaviour towards Ms Francis and made threats of violence towards Mr Warne. I find that the Respondent was so entitled and the Claimant was not entitled to notice pay and the breach of contract fails and is dismissed.[75]The claim of wrongful dismissal is therefore not well-founded.
Remedy
[76]Further consideration of the remedies to which the Claimant is entitled is adjourned to a date to be fixed.[77]Prior to the hearing, the parties are required to agree Claimant’s weekly net and gross earnings at the termination date or explain the basis for any disagreement