Mr S Westney v Utilities Academy Ltd (in administration): 1800382/2019
JUDGMENT
The Claimant’s complaint of unfair dismissal fails and is dismissed.REASONS
Issues
[1]The Claimant’s sole complaint is of unfair dismissal. The Respondent defended the complaint putting forward that the Claimant was fairly dismissed for a reason relating to conduct. The Respondent, however, subsequently went into administration. The Claimant obtained the consent of the administrators to continue with these proceedings. By email of 23 May 2019, the administrators wrote to the Claimant’s representatives and the Tribunal stating that they did not wish to contest the claim and were happy for the Claimant to continue to secure judgment. The Claimant’s representatives wrote to the Tribunal on 21 June 2019 requesting that the matter be dealt with on the papers alone and stating that they would provide the Tribunal with the Claimant’s witness statement and schedule of loss. An order was subsequently made requiring those to be submitted to the Tribunal as well as any relevant documents.[2]Those papers have today come before this Employment Judge today, therefore to determine the case on the papers. Those papers put before the Tribunal include the Claimant’s grounds of complaint together with the Respondent’s response, various internal correspondence between the parties and notes of meetings held with the Claimant. On the basis of the Claimant’s witness statement, the pleadings and those documents the Tribunal makes the following factual findings. Facts[3]The Claimant was employed by the Respondent from 9 March 2015 as an Electrical Product Manager.[4]Money from the Respondent’s sale of scrap metal was kept in a tin for which the Claimant was responsible at the time of his dismissal.[5]On 7 September 2018 the Claimant received an email from Sue Mayers asking him to complete an Excel spreadsheet with “creative” information about telephone reviews in respect of which the Respondent received income. The Claimant refused to do this. A further email of 10 September to the Claimant from Ms Mayers was sent to give him and colleagues “an idea of what to put in your spreadsheet…”.[6]A social night out was arranged by Louise Young, Office Manager, to take place around Wakefield town centre on 28 September 2018.[7]On the afternoon of that day, Ms Young emailed the Claimant’s manager, Mr Daniel Taylor, stating that she wished to bring something to his attention regarding the money obtained for scrap metal. She referred to the night out planned for that evening, which she said was being treated as a leaving do for 4 members of staff who had recently left the Respondent. She went on that she had been made aware that the night out was to be funded by money which the Respondent obtained for scrap metal and that the Claimant had offered a hotel room for herself to be funded using this money. She said she had declined the offer and said she probably wasn’t going on the night out. That morning she said that she had asked the Claimant who had the money and how much would be taken. She reported that he said that he had the cash and would be taking £600 out to spend that night.[8]She said that she subsequently approached Steve Todd and asked him if he knew where the money for the night out was coming from, to which he replied that it was money from scrap metal. Mr Todd was responsible for selling the scrap metal before passing the proceeds on to the Claimant. Ms Young subsequently texted the Claimant asking if he had Mr Taylor’s approval to use the money. This resulted in telephone call between them, during which she said that the Claimant had said that he didn’t know if Mr Taylor knew about it and didn’t care because, if he was asked about it, he would say they’d always done this and Steve Cross (his previous manager) had allowed it before.[9]The Claimant was invited to an investigation meeting which took place before Mr Taylor on 1 October 2018. The Claimant confirmed that he held around £1000 in scrap money and that everyone knew about it. Mr Taylor said that, as the Claimant’s line manager, he was unaware, to which the Claimant responded that that was Mr Taylor’s problem not his. Mr Taylor said that he had spoken to Mr Coleman, Managing Director, who said that he wasn’t aware of the scrap money currently held and that the only authorisation regarding spending scrap money had been given a significant time previously.[10]Mr Taylor then referred to it having been brought to his attention that the Claimant had taken £600 of scrap money out with him on the night out. The Claimant denied that and that any scrap money had been used. He denied offering to buy hotel rooms with the money. After some further questioning the Claimant said that the night had had been “covered by me”. He said that the only time he had used scrap money was to pay “for things around the centre”. When asked if he was aware that to use the money he would need authorisation he responded: “of course”. The Claimant went on to say that he had let people think that the scrap money was being used for the night out “because that is what we have always done” but then denied that he had advised anyone that it was the scrap money. The Claimant accepted that he had received a text message from Ms Young but denied her version of the subsequent telephone conversation. The Claimant’s position was that there was £1000 in the scrap tin and that was the amount that ought to have been there. The tin was then collected and found to contain £980.[11]The Claimant was asked if he had any evidence that he had used his own money on the night out and responded asking why he would have to prove that. Mr Taylor suggested that if he himself had been paying for the night out he would have drawn the money out of the bank or paid on his card. The Claimant responded: “what I do with my money is my business”. When asked if he had a bank statement showing money drawn out of his account prior to the night out, he said that he had money in his house, not just in the bank. Again, he queried why he should have to prove if he had spent his own money.[12]Mr Taylor obtained information from a number of witnesses after the hearing. Ms Young emailed him on 1 October saying that she had spoken to one of the attendees, Mr McArthur, who had said that the money was from some sort of kitty that the Claimant had. Mr Taylor made a note of a conversation with an attendee, Lee Sapwell, who said that the Claimant had used the scrap money from the blue tin for the night out and the last time scrap money had been used had been authorised by the Claimant’s then manager, Steve Cross. He wasn’t aware of any authorisation in respect of this night out, but presumed the Claimant had received authorisation from someone.[13]Mr Steve Todd submitted a statement saying that it was his understanding that the scrap money was being used for the night out and that the Claimant paid for all the drinks on 28 September.[14]Mariam Hussain, Learning Coordinator, emailed Mr Taylor on 2 October saying that she been asked on the morning of the night out (albeit referring to a date in August rather than September) by the Claimant if she would be coming on the night out and that he had mentioned he would be using £600 out of the scrap money for the night out. She didn’t in the end attend the night out.[15]In an email from Zoe Green, Financial/HR Controller to Mr Taylor of 2 October, she said that she knew the Claimant had control of the scrap money and was under the impression that this could be used for nights out as it had been on previous occasions. She said that she thought that scrap monies were being used for the evening’s drinks.[16]The Claimant was invited by letter of 1 October to a disciplinary hearing on 5 October to discuss the allegation of gross misconduct specifically, the theft of company scrap monies. The Claimant was told that if the allegations were substantiated they would be regarded as gross misconduct and that, if he was unable to provide a satisfactory explanation, his employment might be terminated. He was given the right to be accompanied by a colleague or union representative. The Claimant was subsequently sent minutes of the investigation. Mr Taylor was also provided by Ms Young with a screenshot of the text messages between her and the Claimant on 28 September and she give a reconfirmation of what she said had been stated by the Claimant during their subsequent telephone conversation. This was also provided to the Claimant.[17]On 4 October, Dan Coleman, Managing Director emailed Mr Taylor saying that previously if any scrap money had been used, it had been authorised by himself. Authorisation had then subsequently been given by a centre manager in Wakefield - the last time scrap money had been authorised being in January 2018 by Steve Cross. Mr Cross had made him aware in January that there had been £2500 in the scrap tin with £250 spent on gokarting and £500 spent on a night out in January. Since then he said he had received no further updates from the Claimant and believe that there should have been £1700 left in the tin. He commented that if the Claimant did not admit to “a serious misjudgement” the police might be involved. The hearing was then conducted on 5 October by Catherine Marshall, HR consultant. The Claimant provided a typed statement. Within this the Claimant said that Mr Coleman in his email had forgotten to mention paying staff to work weekends out of the scrap money tin in an agreed sum of £100 per person for every Saturday or Sunday. He gave the names of people who had worked weekends over the preceding 14 months. He also referred to suggestions that he falsify records, including of telephone reviews of apprentices.[18]Following the disciplinary hearing, Mr Coleman wrote to the Claimant on 9 October confirming his dismissal effective that day in respect of the allegation of gross misconduct. The letter contains a summary of what was said at the hearing. He referred to their being evidence from a number of sources that the Claimant had indicated that the evening would be paid for from scrap monies. The conversation with Ms Young was referenced. It was noted that the Claimant had said that he had paid for the night out, approximately £550, out of his own pocket but that he had confirmed that he had not ever previously paid for nights out or other activities. When asked why he paid for that night, the Claimant had said that he did not feel people would have attended if he had told them that he could not use the scrap money. The Claimant had said that the following the previous authorised events there had been roughly £1700 in the tin but that due to money being taken out for weekend working there was now around £1000.[19]Mr Coleman went on to say that it was not company policy to pay cash in hand for weekend work, that he did not believe that money was being paid out for that purpose but rather that the Claimant had lied about the cash scrap monies and indeed had taken money out without authorisation to use for the night out. He believed the Claimant also used monies without authorisation to purchase a coffee machine. He considered that “alarmingly” the scrap money tin had been hidden between two workshops with only the Claimant having knowledge of it. The allegation of theft was upheld with Mr Coleman continuing that he believed that the Claimant had shown a blatant disregard to the business in terms of trust and that this could not be tolerated. The Claimant was given a right to appeal.[20]The Claimant submitted his appeal by letter of 9 October. The hearing was arranged for 22 October to be conducted by Mr David Holland. Prior to that hearing the Claimant submitted a receipt for a hotel in Wakefield for the night out and to the value of £27. He also referred to members of staff who he said had been paid cash in hand from the scrap tin to the value of £100 per eight-hour day.[21]At the hearing the Claimant submitted a detailed opening statement.[22]Mr Holland wrote to the Claimant on 23 October rejecting his appeal and saying that he believed the correct procedure had been followed with which the Claimant had agreed at the appeal hearing itself. He noted that the Claimant had led staff to believe the night would be paid for from the scrap monies, the Claimant was responsible for the scrap tin but could not account for monies paid into or out of it and the Claimant had shown no evidence that he had paid for the night out from his own funds. Applicable law[23]In a claim of ordinary unfair dismissal, it is for the employer to show the reason for dismissal and that it was a potentially fair reason. One such potentially fair reason for dismissal is a reason related to conduct pursuant to Section 98(2)(b). If the Respondent shows a potentially fair reason for dismissal, the Tribunal shall determine whether dismissal was fair or unfair in accordance with Section 98(4) of the ERA, which provides:- “ [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – depends upon 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”.[24]Classically in cases of misconduct a Tribunal will determine whether the employer genuinely believed in the employee’s guilt of misconduct and whether it had reasonable grounds after reasonable investigation for such belief. The burden of proof is neutral in this regard. The Tribunal must not substitute its own view as to what decision it would have reached in particular circumstances. The Tribunal has to determine whether the employer’s decision to dismiss the employee fell within a band of reasonable responses that a reasonable employer in these circumstances might have adopted. It is recognised that this test applies both to the decision to dismiss and to the procedure by which that decision is reached.[25]The reason for dismissal is “the totality of the reason which the employer gives” (see Robinson v Combat Stress UKEAT/0310/14). The fact that upon analysis some parts of that reason do not stand up to scrutiny does not mean the dismissal is unfair if what is left means dismissal was still within the band of reasonable responses.[26]A dismissal, however, may be unfair if there has been a breach of procedure which the Tribunal considers sufficient to render the decision to dismiss unreasonable. The Tribunal must have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[27]If there is such a defect sufficient to render dismissal unfair, the Tribunal must then, pursuant to the case of Polkey v A E Dayton Services Ltd [1998] ICR 142 determine whether and, if so, to what degree of likelihood the employee would still have dismissed in any event had a proper procedure been followed. If there was a 100% chance that the employee would have been dismissed fairly in any event had a fair procedure been followed then such reduction may be made to any compensatory award. The principle established in the case of Polkey applies widely and beyond purely procedural defects.[28]In addition, the Tribunal shall reduce any compensation to the extent it is just and equitable to do so with reference to any blameworthy conduct of the Claimant and its contribution to his dismissal – ERA Section 123(6).[29]Under Section 122(2) of the ERA any basic award may also be reduced when it is just and equitable to do so on the ground of any conduct on the employee’s part that occurred prior to the dismissal.[30]Having applied the facts to the relevant legal principles, the Tribunal reaches the following conclusions.Conclusions
[31]It is for the Respondent to show the reason for dismissal and that it was a potentially fair reason. The Respondent puts forward that dismissal was for reason of the Claimant’s misconduct in his dealings with money taken from the scrap metal cash tin. The Claimant suggests that in fact the decision to dismiss was because he refused to falsify documentation to allow the Respondent to claim additional payments to which it was not entitled.[32]The Tribunal considers, however, that the reason for the Claimant’s dismissal was his (believed) unauthorised spending of money in the cash tin containing the proceeds from the sale of scrap metal. The evidence points to a genuine allegation being brought to the Respondent, initially by Ms Young, which was genuinely investigated with evidence gathered which the Respondent believed show the Claimant to have acted improperly. This was objectively a serious matter which one would expect any employer to wish to look into. The issue was then raised with the Claimant who was questioned in some detail about the monies in the tin. The Claimant raised the request to falsify documents, but the content of the dismissal decision letter and appeal decision letter clearly communicate a reasoned decision on the basis of the Respondent’s view of the Claimant’s conduct in relation to the cash tin. The Claimant has not shown a linkage between his refusal to falsify documents and the decision-makers within the Respondent and the Tribunal does not consider, viewing all the evidence as a whole that the allegations against the Claimant were invented as a consequence of any allegation of falsification or refusal to falsify documents or that it is likely that an alternative (more lenient) sanction might have been applied had the falsification issue not been in the decision-makers’ knowledge.[33]Did then the Respondent believe in the Claimant’s misconduct on reasonable grounds and after reasonable investigation? The Tribunal concludes that, on the evidence, it did. The Respondent had evidence from a number of employees of their belief and of indications made to them by the Claimant that he intended to use scrap metal monies to fund the night out.[34]The Claimant’s account of how he had funded that night was reasonably regarded by the Respondent as problematic and ultimately not accepted. Whilst the Claimant said that he had not used any of the scrap money, he did not immediately clarify how the night had been paid for in circumstances where that would have been easy and immediately obvious for him to do so, if that was the accurate explanation. The Claimant said that he had let people believe that the night out had been paid for from the scrap monies. The Claimant then denied that he had advised people that it was paid for out of scrap money. The Claimant later volunteered that the entire cost of evening had been covered by himself. That remained his position in circumstances where at the subsequent disciplinary hearing he accepted that this was not something he had ever done before. The Claimant could not evidence any card payments he had made for the bulk of the money spent on the night out, some £550, and was unable to show that he had drawn such amount out of any bank or savings account prior to the night out. His position was that he had money in his house not just in the bank, although he did not explicitly say where the money had come from which funded the evening out and he was clearly not regarded by the Respondent as straightforward in his account – reasonably so. The Respondent was reasonable in concluding that the Claimant had not paid for the evening out of his own monies.[35]It was further reasonable in concluding, as the Claimant accepted, that he had not sought or obtained any authorisation for this expenditure. The Claimant acknowledged that authorisation was required.[36]The Respondent was unclear about exactly how much cash ought to have been in the tin and could not show any particular shortfall of monies. No one, not least the Claimant, had kept any record of amounts put in or taken out of the tin. The Respondent’s fundamental decision that the Claimant was guilty of gross misconduct was not, however, dependent or based upon any conclusion more generally as to how the Claimant had dealt with the cash in the tin or that there was a particular shortfall. Its conclusion was, reasonably, that the Claimant had taken an amount of around £550 – £600 out of the cash tin without authorisation and had spent it on financing a night out.[37]In this context, the Respondent’s failure to interview all those who said they had received cash for additional hours worked on weekends does not render dismissal unfair. A conclusion that the Claimant was accurate regarding this use of monies would not have excused or contradicted the taking of the aforementioned sum of money out of the tin without authorisation for the night out.[38]The procedure adopted by the Respondent was fair in terms of the Claimant having the benefit of union representation, appropriate invitations to meetings, the chance to put his case at all stages and the provision of a reasoned written decision to terminate his employment. Whilst the appeal may have been heard by a person not at a level of seniority to Mr Coleman who issued the dismissal decision, this is insufficient in itself to render dismissal unfair in circumstances where the evidence is of a properly constituted appeal meeting where the Claimant was able to make representations and where the most senior post holder in the company had already been involved, necessitating a fresh pair of eyes at the appeal stage. The Claimant has not pointed to any further senior independent person within the company who might alternatively have heard the appeal. Nor would any alternative appeal officer have made any difference to the outcome, had the Tribunal come to consider a compensatory award.[39]The dismissal was within a range of reasonable responses. The Claimant’s conduct, as reasonably found, went fundamentally to the issue of trust. The Respondent concluded that the Claimant had spent a significant sum of money without authorisation on a staff night out and reasonably found the Claimant’s account during the internal process to lack credibility. For such an offence, dismissal must be within a band of reasonable responses open to an employer in the Respondent’s position.[40]The Claimant was not unfairly dismissed.[41]Had the Tribunal concluded that dismissal had been unfair, on the basis of the Claimant’s failure to provide a satisfactory explanation for the funding of the night out, the Tribunal would have concluded that he was guilty of blameworthy conduct which contributed to his dismissal and of conduct prior to dismissal which would have resulted in a 100% reduction to any basic and/or compensatory award.