Mr A Thomas and Mr C Thomas v WJ Roadmarkings North Ltd: 1801361/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 1801361/2023
Between
Mr A Thomas and Mr C ThomasClaimantWJ Roadmarkings North LtdRespondent
Before
Employment Judge T KnowlesIn person for claimantMs E Mayhew-Hills (instructed by Solicitor) for respondentDate 4 July 2023
JUDGMENT
[1]The First and Second Claimants’ claims of unfair dismissal are not wellfounded.[2]The Second Claimant’s claim of automatically unfair dismissal for having made a protected disclosure is not well-founded.[3]The Second Claimant’s claim for other payments is not well founded.
REASONS
Issues
[1]The First Claimant has brought a claim of unfair dismissal only.[2]The Second Claimant has brought claims for unfair dismissal, whistleblowing and for other payments.[3]In relation to the whistleblowing complaint, there are no detriments listed and the complaint appears to only relate to dismissal.[4]The Second Claimant originally brought a claim of age discrimination but this has been dismissed upon its withdrawal 29 June 2023. The Respondent denies the Claimants’ claims.
The Law
[6]Accordingly the issues for determination are as follows: 6.1. What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimants had committed misconduct. 6.2. Was the reason or principal reason for the Second Claimant’s dismissal that the claimant made a protected disclosure? If so, the Second Claimant will be regarded as unfairly dismissed. 6.3. If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimants? The Tribunal will usually decide, in particular, whether: 6.3.1. there were reasonable grounds for that belief; 6.3.2. at the time the belief was formed the Respondent had carried out a reasonable investigation; 6.3.3. the Respondent otherwise acted in a procedurally fair manner; 6.3.4. dismissal was within the range of reasonable responses. 6.4. In relation to the Second Claimant, are other payments due to him and if so in what amount? Evidence[7]This hearing was undertaken by video using HMCTS’s cloud video platform.[8]Both Claimants gave evidence and produced a written witness statement.[9]On behalf of the Respondents I heard evidence from the following, who each produced a written witness statement: 9.1. Mr Loren Jackson, General Manager, 9.2. Mr Colin Blanchard, Contracts Manager.[10]All witnesses affirmed that the evidence that they gave was the truth.
Conclusions
[11]The parties produced a bundle of documents 129 pages.[12]References in this Judgment to numbers in brackets are to page numbers in the bundle of documents.
Findings of fact
[13]I made the following findings of fact on the balance of probabilities. These findings are not intended to cover all of the evidence heard. These are the material points in evidence which are relevant to the issues and to my determination of the issues.[14]The First Claimant commenced employment with the Respondent on or around 23 October 2017 and was a Road Marking Linesman.[15]He and his cousin, the Second Claimant, worked together as a crew.[16]The Second Claimant’s employment commenced employment on or around 1 July 2014.[17]The Respondent is a specialist road marking business.[18]On 22 September 2022, the Claimant’s were booked to undertake work in Halifax.[19]However on route, unbeknown to the Respondent, they travelled to Wyke. They stopped at a bathroom supplies shop. This was recorded on the Respondent’s vehicle GPS. They were at those premises for 40 minutes.[20]The Respondent, specifically Mr Blanchard, later became aware from another employee’s partner that the Respondent’s vehicle had been seen at those premises in Wyke and that the crew were working (104).[21]He checked the GPS and found that that the crew had been there a considerable length of time when they should have been elsewhere (73-75).[22]Mr Blanchard visited the site and found that the car park had been newly lined recently. He took photographs. This was on or around 24 September 2022.[23]On or around 27 September 2022 the Claimants were suspended. Only the Second Claimant was spoken to at the time. The First Claimant was on annual leave[24]Mr Blanchard’s evidence is that the Second Claimant admitted doing the work when first spoken to and offered to pay for the materials.[25]The Second Claimant disputes this.[26]I preferred Mr Blanchard’s evidence because it is consistent with the transcript of a later telephone conversation between the two which Mr Blanchard was unaware the Second Claimant was recording (111). When Mr Blanchard asked why the Second Claimant admitted doing the work when it was first put to him, the Second Claimant referred to having felt intimidated. I consider this to be indicative of an acceptance by him that admissions were made during that first meeting.[27]The Claimants both say that they were advised to resign because they would otherwise be sacked. The Respondent has not disputed this. I find it probably did happen.[28]Both Claimant’s were suspended on full pay for using the company vehicle for personal use without permission and for carrying out personal work during business hours (83.85).[29]On 11 October 2022, the First Claimant was interviewed.[30]On 14 October 2022, the Second Claimant attended a disciplinary hearing.[31]They complain of being given insufficient notice of these investigations but neither of them have told me what difference this actually made. They also complain about not receiving copy minutes prior to their disciplinary hearings. I doubt these procedural points make any difference because the accounts they gave at the time are the same as they have given to me today in this hearing therefore they were afforded a full opportunity to put forwards their cases.[32]Both Claimant’s presented a case at their investigation meetings that they were present at the premises in Wyke but did not do any work there. The First Claimant stated that he had telephoned Mr Jackson but he did not reply so they passed the work onto a 3rd party and left. They were asked who they passed the work onto but refused to say.[33]The Respondent tried to contact the third party premises but they refused to discuss the line marking.[34]The Second Claimant was dismissed at his meeting on 14 October 2022.[35]The First Claimant was invited to a meeting on 17 October 2022. He maintained the account he had given on 11 October 2022 and submitted photographs of private works completed on Mr Blanchard’s family members premises, together with a text message he received from Mr Jackson notifying him that his cousin had resigned and suggesting that he did the same.[36]The First Claimant was dismissed 17 October 2022.[37]Both Claimants were dismissed for the same reason, the two asserted issues of conduct for which they were originally suspended.[38]Both Claimants received letters confirming their dismissal and advising of a right to appeal dated 19 October 2022 (100-103).[39]They procured for the appeal hearings a letter from the 3rd party premises which appears to corroborate their account that they attended the premises to look at marking out the car park but left because they were unable to contact the person in charge. The First Claimant accepts that this person is his friend, although he states he is not a close friend.[40]They both appealed but the decisions to dismiss were upheld (109).[41]At the hearing today the Claimants have essentially stuck to the account they gave during the disciplinary hearings.[42]Both admitted in answer to questions in cross examination that they did not dispute that they had taken the vehicle to 3rd party premises without permission and that this was gross misconduct, whether or not they actually undertook the work. Submissions[43]The First Claimant recited circumstances concerning the lack of minutes of meetings being produced at the time and that the witness statement from the person who allegedly saw them working at the 3rd party premises was not dated at the time, and was only produced later.[44]The Second Claimant made no submissions.[45]The Respondent reiterated their case, that they had GPS evidence of the time the Claimants were at the premises and both admit gross misconduct by taking the vehicle to those premises without permission.
The Law
[46]Section 98 of the Employment Rights Act 1996 sets out how this Tribunal should approach the question of whether a dismissal is fair. There are two stages.[47]First, the employer must show the reason for the dismissal and that it is one of the five potentially fair reasons set out in sections 98(1) and 98(2).[48]Second, provided the respondent is successful at the first stage we must then consider whether the employer acted reasonably in dismissing the employee for that reason under section 98(4).[49]A reason for dismissal is a set of facts known to the employer or belief held by him which caused him to dismiss the employee (Abernethy v Mott Hey & Anderson [1974] IRLR 213 CA).[50]It is sufficient that the employer genuinely believed on reasonable grounds that the employee was guilty of misconduct. The employer does not have to prove the offence (Alidair Limited v Taylor [1978] ICR 445 CA).[51]Guidance applicable to cases of misconduct was given by the EAT in British Home Stores Limited v Burchell [1980] ICR 303. The issue of fairness involves three elements: 1 Whether the employer believed the employee was guilty of misconduct, and 2 Had in his mind reasonable grounds upon which to sustain that belief, and 3 At the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter was reasonable in the circumstances of the case.[52]This guidance must be read in the light of Boys & Girls Welfare Society v McDonald [1996] IRLR 129 EAT which reminds the Tribunal that in considering the question of fairness for the purposes of section 98(4) the burden of proof is neutral.[53]I also reminded myself of the decision in Iceland Frozen Foods Limited v Jones [1982] IRLR 439 EAT that the function of the Employment Tribunal as an industrial jury is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.[54]In Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 the Employment Appeal Tribunal held that: “the logical jump from gross misconduct to the proposition that the dismissal must then inevitably fall within the range of reasonable responses gave no room for considering whether, though the misconduct was gross and dismissal almost inevitable, there were mitigating factors that might be such that dismissal was not reasonable. The tribunal's function was to look at the trust's conclusion. It was not sufficient to point to the fact that the trust considered the mitigation and rejected it, largely upon the basis that the failure to observe the verbal notice and the letter undermined it, because a tribunal could not abdicate its function to that of the employer. It was the tribunal's task to assess whether the employer's behaviour was reasonable having regard to the reason for dismissal. It had to consider the whole of the circumstances with regard to equity and the substantial merits of the case. But that general assessment necessarily included a consideration of those matters that might mitigate, such as long service, the consequences of dismissal and a previous unblemished record. For that reason, there had been an error of direction to itself by the tribunal. The case would be remitted to the same tribunal, which had to take a proper approach in asking whether the gross misconduct justified dismissal in the light of all the mitigation available personally to B.”[55]The Respondent has directed me to Chief Constable of Lincolnshire v Stubbs. [1999] I.C.R. 547 (1998) in which the Employment Appeal Tribunal held that “although the two incidents took place away from the actual work place [in a public house], they occurred during work based social gatherings. In that context they could be seen as occurring in the course of employment in an extended version of the work place, Tower Boot Co Ltd v Jones [1997] 2 All E.R. 406, [1996] 12 WLUK 162 and W v Commissioner of Police of the Metropolis [1997] I.C.R. 1073, [1997] 7 WLUK 88 applied… each case will depend upon its own facts”.[56]The Court of Appeal in Sainsbury's Supermarkets Limited v Hitt [2003] IRLR 23 held that the range of reasonable responses test applies to both, the decision to dismiss and to the procedure by which that decision is reached.[57]In determining the fairness of dismissal on grounds of misconduct we have regard to the provisions of the ACAS Code of Practice on disciplinary practice and procedure as well as the overall principals of natural justice and fair hearings.[58]Under Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, an award may be increased or reduced where the employer or employer unreasonably fails to follow the ACAS code. The amount of the adjustment is up to 25% in the following circumstances:• the claim concerns a matter to which a relevant code of practice applies• the employer or employee has failed to comply with the code• the failure was unreasonable, and• the tribunal considers it just and equitable in all the circumstances to make an adjustment. Conclusions What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimants had committed misconduct.[59]I do not consider that, on the evidence before me, either Claimant is in any doubt of the reasons for dismissal. They both referred me to the note on page 111 where Mr Blanchard was suggesting that they would lose their jobs and that he believed they had done the work in Wyke as evidence of prejudice. Neither suggests any other reason for their dismissal. I conclude that the Respondent’s all genuinely believed that the Claiman’s had taken the vehicle to premises in Wyke without permission and undertaken private work their when they were on paid time with the Respondent. Was the reason or principal reason for the Second Claimant’s dismissal that the claimant made a protected disclosure? If so, the Second Claimant will be regarded as unfairly dismissed.[60]The Second Claimant has produced no evidence of any protected disclosure. He has not mentioned any potential other reason for his dismissal in his evidence, nor can any be seen in his claim form.[61]The Second Claimant’s claim of automatically unfair dismissal for having made a protected disclosure is not well founded. If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimants? Were there were reasonable grounds for that belief?[62]I conclude that the Respondent had reasonable grounds to believe that the Claimants had taken a vehicle to Wyke without permission and undertaken private work when they were on paid time with the Respondent.[63]There is no dispute between the parties that they took the vehicle to Wyke without permission.[64]The only issue is whether or not the Respondent had reasonable grounds to believe that they also undertook private work at those premises.[65]The Respondent had the independent witness evidence, GPS records for the Claimants travel and had visited the premises soon afterwards and found new lines in the car park.[66]The Second Claimant had admitted doing the work and offered to pay for the materials.[67]It was for the Respondent to balance the Claimants’ explanation that they did not end up doing the work because they did not manage to get through to obtain permission, and to take into account the statement that the Claimant’s obtained from the 3rd party premises owner (the First Claimant’s friend) prior to their appeal.[68]There was clearly conflicting evidence before them albeit it should be noted that none of the evidence is conclusive one way or another.[69]However, they had to take a decision and the evidence that they produce is in my conclusion sufficient to demonstrate reasonable grounds to believe that the Claimants had committed the misconduct and to dismiss the Claimants evidence to the contrary. At the time the belief was formed the Respondent had carried out a reasonable investigation?[70]The only item of investigation that remained by the time the appeals process had been completed was whether or not the vehicle camera recording would have shown whether or not the Claimants did any work.[71]I can see no reference to this in the internal proceedings, it has been referred to only in submissions by the First Claimant.[72]I have insufficient evidence to consider this point in isolation as meaning the investigation was outside of a range of reasonable investigations.[73]I have no evidence about how the vehicle was parked and whether or not the camera would have the car park in view.[74]I do note, and have made a finding of fact, that the conduct had initially been admitted in full. That is quite an important factor to weigh in to the balancing exercise. In my conclusion this is a case in which the cause any need for any potential further investigation is the about turn the Second Claimant made in deciding no longer to admit to doing the work in Wyke.[75]In these circumstances the investigation which has been presented by the Respondent appears to me within the range of reasonable investigations which may have been undertaken by an employer acting reasonably. Did the Respondent otherwise act in a procedurally fair manner?[76]There appear to me to be issues concerning notice of the investigation meeting for the First Respondent and concerning minutes which were missing from the information sent to the Claimants. The witness statement also appears only to have been disclosed after the dismissal but before the appeal.[77]A disciplinary process should be considered as a whole and includes the process of appeal.[78]I am satisfied that if we look at this inclusive of the appeal, then it is clear that the procedure followed was within the range of processes which might have been adopted by a reasonable employer. Was dismissal within the range of reasonable responses?[79]The Respondent was responding to two instances of misconduct; the unauthorised taking of a vehicle to price up a private job and the undertaking of private work without permission during a period of time where the Claimants were being paid to undertake work for the Respondent. Dismissal is, in my conclusion, well within a range of reasonable responses which may have been adopted by an employer acting reasonably.[80]In my conclusion, the Respondent acted reasonably in all the circumstances in treating the conduct as a sufficient reason to dismiss the Claimants.[81]The Claimants’ claims of unfair dismissal are not well founded. In relation to the Second Claimant, are other payments due to him and if so in what amount?[82]The Second Claimant has not particularised any claim for wages or notice outside of his claim for compensation for unfair dismissal, nor has any evidence been produced in support of any such claim. That claim is therefore not well founded.
Conclusions
[1]The applications for reconsideration were made in time.[2]The First Claimant’s grounds for reconsideration, set out in the application dated 30 July 2023, are as follows: I Anthony John Thomas would like to appeal against the decision that was made against my court hearing. Issue 1. It is alleged i have made a claim for unfair dismissal only. I have also claimed for being contacted by my manager whilst on annual leave (on my honeymoon) i want to claim for the full refund of my honeymoon that was spoilt through recieving a txt message from my manager Loren Jackson advising me to resign. Evidence number 10. Evidence they have gave was the truth. Again this was false evidence from colin blanchard and loren jackson. Evidence 20. Yes we admitted taking the wagon 4.2 mile away from the works we was issued that night. As stated in the hearing its just same as going to Colin blanchards inlaws to do private works for Colin Blanchard who at the time he told us to go to that destination was only a supervisor so did not issue the works. Therefore we had no permission from the manager so that would be gross misconduct aswel. Evidence 33. False information again. There was no contact to roy waterhouse kitchen and bathroom from WJ. (Adam waterhouse is an old friend from school so I’ve recently contacted adam to see why he or anyone at roy waterhouse kitchen and bathroom refused to talk to WJ, Adam spoke to his dad Roy Waterhouse the owner of the shop to ask him why he refused to talk to WJ and stated that neither himself or Adam waterhouse had received any phone calls from WJ or anyone from WJ had gone to their shop. False information from colin blanchard and loren jackson. Im struggling to understand why craig thomas would admit to doing these works when i know we did not do the works. The length of time of us being onsite approximately 20 mins seeing how they wanted the carpark doing. Myself then ringing Loren Jackson, (proof of phone call) to then being onsite for another 25 minutes approximately. How is this possible doing a carpark in wet conditions enough time to doing the works we have been accused of doing. This is not possible. The lack of minutes at the disciplinary hearing of me asking to see the witness statement which was not shown until my contract was terminated was a false statement provided by a partner of Melissa chance. Statement finally received after contract was terminated not even signed until 6 months after the accusations. False statement as this was actually Melissa Chance that passed by the job as i was trying to contact loren jackson. Id like to appeal the decision that was made after my court hearing as i know it’s the wrong decision made. I swore to tell the truth, The whole truth and that is what I presented. I feel I’ve been really let down here towards my claim for unfair dismissal and claiming for my honeymoon that was ruined.[3]I add here the additional points made by the Second Claimant, where they are not a repetition of the First Claimant’s application (they appear to a degree to be copies of one another.[4]The Second complainant states the following concerning paragraph 1 in my reserved reasons in his application: “I feel the process of the tribunal evidence given by WJ North was not a true account of events and accusations of taking company vehicle without consent was not true as we was on shift that evening and did have permissions to drive the company vehicle as we did on every occasion. My main point of all this is that the company WJ north limited removed us of our duties on the grounds of doing un authorised works which was not true and i feel this was 3 inside manoeuvre to oust us from our job roles at WJ hence the insufficient witness statements made by a member of the office, not at any point did we carry out unauthorised works and within the evidence there is a clear written statement from the landowner which was not considered as very important evidence to support our case.”[5]The Second Claimant also refers me again to the telephone call he had with Mr Blanchard after they spoke following his shift on 27 September 2022 and tells me that Mr Blanchard abused him and acted in an unacceptable and unprofessional manner. The Law[6]Rule 70 of Schedule 1 to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 sets out the right to apply for reconsideration. Rule 71 deals with the time in which an application should be made and how. Rule 72 deals with procedural matters concerning disposal.[7]There is only one ground for reconsideration in the rules which is where reconsideration is necessary in the interests of justice.[8]I must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’ under Rule 2 which includes ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense.[9]In Stevenson v Golden Wonder Ltd 1977 IRLR 474, EAT, Lord McDonald said of the old review provisions that they were ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’.[10]There must be finality in proceedings and the reconsideration process should not generally be used to gain a “second bite at the cherry” (Todd t/a Hygia Professional Training v Cutter UKEAT/0063/07).
Conclusions
[11]References in this Judgment to paragraphs are to paragraphs in my reserved reasons of 4 July 2023, sent to the parties 19 July 2023. I understand these to cross refer to the “issues” and “evidence” numbers set out in the First Claimant’s application.[12]Paragraph 1 - Whilst the First Claimant set out a claim for a refund of his honeymoon costs this claim is not within my jurisdiction. Had he succeeded in his claim for unfair dismissal (the only claim he brought which was within my jurisdiction) then the losses arising from that unfair dismissal would have been considered. However, the claim of unfair dismissal did not succeed.[13]Whilst the Second Claimant disputes that he took the vehicle without permission in his application, at the hearing on 4 July 2023 he admitted doing so and that this alone was gross misconduct (see paragraph 42 in my reserved reasons). I dealt with the letter from the landowner at paragraph 39 in my reserved reasons.[14]Paragraph 10 – in my reserved reasons I simply set out that all witnesses affirmed that their evidence would be the truth.[15]Paragraph 33 – The Claimants clearly did contact Messrs Waterhouse and I dealt with that at paragraph 3 of my reserved reasons. I needed to balance such evidence with that provided by the Respondent’s witnesses, whose evidence generally I preferred to that given by the Claimants.[16]The applications go on to refer to the admission by the Second Claimant that they did the works. I considered the evidence on that during the hearing and the Claimants are adding nothing new in their applications. I dealt with the issue at paragraphs 24 -26 in my reserved reasons.[17]The First Claimant’s application refers to the length of time spent at the site in question. The evidence before me was that they were at the site for 40 minutes. I dealt with the reasonableness of the Respondent’s conclusion concerning the misconduct at paragraphs 62-69.[18]The Second Claimant refers me again to his conversation with Mr Blanchard which he recorded. I took that into account and it is referred to in paragraph 26 of my reserved reasons.[19]The applications refer to the lack of minutes at the disciplinary hearing but again adds nothing new to the matters I considered at the hearing. I dealt with those issues at paragraphs 31 and 76-78 in my reserved reasons.[20]Taking into account the grounds of the applications for reconsideration and considering them in the round with the comments above, my conclusion is that the Claimants have had a fair opportunity to address the Tribunal on any points of substance at the last hearing.[21]In my conclusion the Claimants simply disagree with my decision and seek to go over the same matters again or add further evidence which could have been adduced on 4 July 2023.[22]There is no reasonable prospect of the original decision being varied or revoked for those reasons.[23]It would not be in the interests of justice to revoke my decision.