Employment Judge T R SmithIn person for claimantDate 26 October 2018
JUDGMENT
[1]The claimant was unfairly dismissed by the respondent.[2]The claimant caused or contributed to his dismissal as to 50%.
REASONS
Background
[1]The issues between the parties were as follows:1.1 The respondent asserted that the reason or principal reason for the claimant’s dismissal was a potentially fair reason, namely, conduct. The burden of proof was on the respondent to establish conduct.1.2 Was the dismissal fair or unfair having regard to section 98(4) Employment Rights Act 1996 (“ERA 96”).1.3 To what extent, if at all, did the claimant cause or contribute to his dismissal.1.4 To what extent, if at all was the principle in Polkey –v- AE Dayton Services Ltd engaged[2]I heard evidence from:- The claimant Mr John Sweeney, dismissing officer Mr Wayne Hudson, appeal officer[3]I also had before me a statement from Andrew Greaux. He was not called by the claimant and therefore the Tribunal gave little weight to the statement.[4]I had before it a bundle of documents consisting of 137 pages.
The Law
[5]Unfair Dismissal5.1 I applied section 98(1), 98(2) and 98(4) of the Employment Rights Act 1996 ("ERA96") which provides as follows:- “98(1) – in determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal and(b) that either it is a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held 98(2) – a reason falls within this subsection if it… (b) relates to the conduct of the employee 98(4) - … 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): (a) depends on whether in the circumstances (including the size and the 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 (b) shall be determined in accordance with equity and the substantial merits of the case”5.2 In Abernethy v Mott, Hay & Anderson 1974 IRLR 213 the Court of appeal held that a reason for dismissal was a set of facts known to the employer or beliefs held by him which would cause him to dismiss the employee.5.3 I had regard to the guidance given in British Home Stores Limited v Burchall 1978 IRLR 3795.4 However, I reminded myself that Burchall was decided before the alteration of the burden of proof effected by section 6 of the Employment Act 1980.5.5 In that case the first question raised by Mr Justice Arnold: "Did the employer have a genuine belief in the misconduct alleged?" goes to the reason for dismissal. The burden of showing a potentially fair reason rests with the employer. However, the second and third questions, the reasonable grounds for the belief based on a reasonable investigation, do to the question of reasonableness under section 98(4) of the ERA 96 and then the burden is neutral.5.6 I had regard to the guidance given at paragraphs 13 to 15 in the case of Sheffield Health and Social Care NHS Foundation Trust v Crabtree UKEAT/0331/09/ZT5.7 The approach to fairness and procedure is the standard of a reasonable employer at all three stages: Sainsbury’s Supermarket v Hitt 2002 EWCA Civ 15885.8 I noted that I must assess fairness looking at the disciplinary proceedings in their entirety.5.9 I noted from the authorities in looking at a case where bad language is used the individual circumstances of the case must be looked at carefully along with any provocation or chance to apologise.5.10 I also had regard to the guidance given in the case of Iceland Frozen Foods Limited v James 1992 IRLR 439:- “The authorities established that in Law the correct approach for an Employment Tribunal to adopt in answering the question posed by section 98(4) is as follows… (i) The starting point should always be the words of section 98(4) themselves (ii) In applying this section an Employment Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Employment Tribunal) consider the dismissal to be fair. (iii) In judging the reasonableness of the employer’s conduct and Employment Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. (iv) In many (although not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another (v) The approach of the Employment Tribunal, as an industrial jury, is to determine whether the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses in which a reasonable employer might have adopted. If a dismissal falls within the band the dismissal is fair… if the dismissal falls outside the band it is unfair. Section 126(6) ERA 96 states that:- “(W)here the Tribunal finds the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the … compensatory award by such proportion as it considers just and equitable having regard to that finding”.5.11 A reduction for contributory conduct is appropriate according to the Court of Appeal in Nelson v BBC(2) 1980 ICR 110 where three factors are satisfied namely, i. the relevant action must be culpable or blameworthy ii. it must have caused or contributed to the dismissal, and iii. it must be just and equitable to reduce the award by the proportion specified.5.12 For a deduction to be made a causal link must be established between the employee’s conduct and the dismissal. In other words, the conduct must have taken place before the dismissal; the employer must have been aware of that conduct; and the employer must then have dismissed the employee at least partly in consequence of the conduct.5.13 In Hollier v Plysu Limited 1983 IRLR 260 guidance was given on the amount of any reduction. The reduction should be assessed broadly and generally, will fall into one of the following categories: i. wholly to blame – 100% ii. largely to blame – 75% iii. employer and employee equally to blame – 50% iv. employee slightly to blame – 25%5.14 Under Section 123 (1) ERA1996 I must consider whether it would be "just and equitable" to make a reduction from the compensatory award. Polkey v AE Dayton Service Limited 1988 ICR 142 HL holds that I must consider whether the unfairly dismissed employee could have been dismissed fairly at a later date, or if a proper procedure had been followed. The Polkey principal applies not only to cases where there is procedural unfairness but also substantive unfairness, O'Dea v ISC Chemicals Limited 1996 ICR 222 CA. If what went wrong was more fundamental and went to the heart of the matter it may well be more difficult to envisage what would have happened in the hypothetical situation of the unfairness not having occurred, see King & Others v Eaton Limited (2) 1998 IRLR 686 Ct Sess. The mere fact that a Polkey Reduction may involve a degree of speculation or is difficult does not mean that the task should not be undertaken – Gover & Others v Property Care Limited 2006 ICR 1073 CA. Helpful guidance was given in the case of Software 2000 Limited v Andrews 2007 ICR 825 EAT which I applied.
Findings of Fact
[6]Findings of Fact6.1 The claimant commenced employment with the respondent on 1 March 2009.6.2 The claimant was employed by the respondent as a plumber.6.3 The respondent is a large company engaged in the provision of repairs and maintenance services to social housing providers.6.4 Amongst the contracts held by the respondent was one with Leeds City Council.6.5 The claimant was assigned to that maintenance contract.6.6 The claimant was required as part of his duties to wear the uniform of the respondent and to drive a liveried van.6.7 The claimant had a clean disciplinary record.6.8 The incident which led to the termination of the claimant’s employment occurred on or about 16 March 2017 at the junction of Wide Lane and Newlands Drive in Morley whilst the claimant was on duty.6.9 I had regard to the helpful plan prepared at page 68. The plan was prepared by a Council tenant who will be referred to as Mr A. The plan is not, in my judgment wholly accurate as it fails to show that there was a vehicle parked behind Mr A’s vehicle in Newlands Drive. This error can be seen when the photograph taken by the claimant is looked at on page 70.The respondent had sight of the photographs in the disciplinary proceedings This is but one factor that should have been clear to the respondent and impacted upon Mr a's credibility6.10 The claimant was driving along Wide Lane towards Newlands Drive with the purpose of taking a left hand turn.6.11 I find that a car driven by a female motorist travelled towards the claimant.6.12 The female motorist was on the wrong side of the road. The reason for this was because there were parked cars on her nearside.6.13 The claimant had just negotiated the turn between Wide Lane and Newlands Drive. The net result was that neither the lady driver nor the claimant could proceed. They blocked each other in on Newlands Drive. It was this incident that was to trigger off the events that led to the claimant’s dismissal.6.14 The relevance of this incident does not impact upon the dismissal but does go, in part to the claimant’s credibility.6.15 There is a further point as to the credibility of Mr A. there was a clear evidential dispute between him and Ms walker as to when Ms Walker arrived6.16 As part of the investigation process a number of people were interviewed. One of those people interviewed was Ms Katie Walker, a Housing Officer employed by the local authority.6.17 The claimant’s case was that the female driver was using a mobile phone and was abusive to him.6.18 The respondent's case was it was the claimant that was abusive. This certainly was the evidence that was put forward by Mr A and upon which the respondent placed considerable weight.6.19 However, if the statement taken from Ms Walker for the purpose of the appeal is looked at, page 102 she was specifically asked whether the claimant was abusive towards the female driver. She replied “don’t think so, she called him names…”6.20 This was a further factor that impacted upon the credibility of Mr A. The respondents failed to take any or any sufficient account of this fact6.21 What is clear is the claimant was annoyed that the other driver would not reverse. He could have reversed but failed to do so. Had he reversed it is likely the situation would not have escalated. The respondent’s were entitled to find that the claimant could have reversed the van as despite what the claimant stated there were no vehicles behind him. The respondent reached this conclusion on justified grounds. Firstly there were no photographs taken by the claimant which showed any cars behind him and secondly the claimant was subsequently able to reverse slightly and then drive forward onto the pavement so the female motorist could pass him.6.22 Unfortunately the situation escalated. What then occurred was open to considerable conjecture. The respondents relied on the evidence of Mr A. Put succinctly Mr A’s case was that he went out to assist the female driver. His evidence was he was watching television and heard a commotion and came out of his house. He alleged that the claimant was screaming and shouting. (I observe this is not what Ms Walker said). He then said he was called by the claimant a ‘wanker’ and an obscene gesture was made to him. The respondents placed considerable weight upon this evidence. The claimant argued Mr A was aggressive and shouting.6.23 However, it was before the respondent's important evidence they had gathered from the local authority about Mr A which was further relevant to Mr A's credibility. That evidence can be found on page 77A. Put succinctly Mr A’s file had been marked to warn local authority employees due to threats of verbal and physical abuse from Mr A. The entry read “very violent person was abuse [sic] towards two members of staff at Morley NHO. Do not visit alone”. Whilst this in itself does not mean that Mr A was unreliable , coupled with the other concerns I have highlighted his evidence needed to be treated with care6.24 Balanced against this was the claimant who was a man of previous good record.6.25 He regularly visited clients in their homes. No evidence was put before me that he had any complaints about his behaviour to others The respondents were not entitled to find on the evidence obtained that the claimant was the instigator of any incident involving Mr A. The evidence points against that. I reach this conclusion for a number of reasons. Firstly on the evidence of Ms Walker. Ms Walker was asked whether Mr A was abusive to the claimant. She did not answer the question directly but did say “Mr A is awkward to deal with…” She was asked about the claimant’s demeanour towards her, which she described as “fine”. The only thing that she had cause for concern was that she was adamant that the claimant then called Mr A a “wanker”. She made no other complaint as to the manner of the claimant to Mr A. She indicated she was surprised that the claimant said this. This indicates that the claimant was not the aggressor. Secondly for the reasons I have highlighted there were grounds on the evidence to doubt the credibility of Mr A's evidence6.26 The female motorist made no complaint.6.27 Mr A made no complaint although his evidence came to light when he was interviewed by the respondents.6.28 Ms Walker did make a complaint. She was adamant that the claimant had called Mr A a ‘wanker’. She also observed that the claimant had been taking photographs of the location of his vehicle and that of the female driver. In my judgment that was consistent with the claimant’s account that he feared that the other driver was to blame and wanted to protect his position.6.29 The claimant’s account to the respondents as to the word ‘wanker’ is not in my judgment credible and the respondents were entitled to discount his explanation. It is true that immediately after the incident the claimant did speak to his manager Mr Cooper to report that an incident had occurred. He complained about the actions of the female motorist. He complained he was being sworn at, both by the female motorist and by Mr A. Mr Cooper recorded that the claimant had said that he had called “a tenant a wanker”.6.30 There was no dispute that this was said as the claimant was in his van and about to drive off. Whilst the claimant alleged that the window of his van was up the respondents were entitled to find it was down as this is more probable given the word was heard by Ms Walker and Mr A.6.31 The respondents were entitled to find that the claimant did use the word ‘wanker’ and further were entitled to find that it was directed to Mr A. The respondents were entitled to find that there was no reason why Ms Walker would lie upon this matter. She had no grudge towards the claimant. The respondents were entitled to find that it was more probable than not that the word was used towards Mr A and not, in effect, as the claimant suggested swearing at himself because he had failed to get a photograph of the female drive who he contended had committed a moving traffic offence namely she was using her mobile phone whilst driving.6.32 In terms of the procedure adopted by the respondents the claimant made a criticism that the investigation was initially undertaken by Mr Cooper but only after he had effectively completed the investigation was it passed over to a Mr Thompson. It was accepted by the respondents that the investigating officer should have had no involvement in the case. Mr Cooper did have an involvement because he both suspended the claimant and, in addition was a witness as to fact. That said, looked at in isolation I do not find that this procedural error was such as to taint the dismissal such that it was unfair. However there were other procedural errors which taken together did taint the fairness of the dismissal. Both Mr Sweeney and Mr Hudson spoke to witnesses of fact before making their decision and did not advice the claimant or his representative of what took place so they could make representations. This was particularly important with Mr Hudson who obtained further evidence from Ms Walker that was helpful to the claimant and if known to the claimant and his representative may have materially affected their submissions. Finally Mr Hudson accepted he did not deal point by point with the claimants grounds of appeal6.33 I have carefully looked at the dismissing officer’s letter of 10 May. I was told by Mr Sweeney that the letter set out all relevant factors that he had considered. The letter is contained in the bundle at pages 85 to 87. There is not in that letter any mention of any mitigating factors that were put forward on behalf of the claimant. Mr Sweeney's evidence was that he did not take mitigation into account as it was clear gross misconduct. That is simply wrong in law and in itself would render the dismissal unfair. Whilst the "tariff" for an offence may be dismissal for gross misconduct the penalty may be reduced dependant on mitigation. Here the claimant did of course have a clean disciplinary record. He had, I find, apologised to Mr Cooper, his manager and I also accept his evidence, although it is not recorded, that he apologised at the disciplinary and subsequent appeal hearing. The latter is certainly documented.6.34 The allegations the claimant had to face were as follows:- 1. “Any act which is deemed to be detrimental to the conduct of the Company’s business or to the employees of the Company 2. Gross negligence in the performance of duties including infringement of health and safety rules 3. Any conduct which undermines the trust that exists between the Company and the employee”6.35 Further clarification was then supplied as regards the allegations namely that the claimant had:- 1. “refused to move your company van when asked, blocking the right of way 2. You used foul and abusive language to a council tenant”6.36 There was no dispute before me that the claimant was aware of the allegations prior to the meeting on 5 May and he had received details of the evidence upon which the respondents relied.6.37 Mr Sweeney the dismissing officer looked at each allegation in turn. He found allegation 1, that is an act which was deemed to be detrimental to the conduct of the Company’s business, proven on the basis that he found that the claimant had used the word ‘wanker’ and made an obscene gesture. On the basis of the evidence placed before him he was entitled to make that finding that the allegation was proven.6.38 The second allegation he also found proven. This was the allegation of alleged gross negligence in the performance of duties including infringements of health and safety rules. In my judgment there was no or insufficient evidence to support such a finding. What Mr Sweeney relied upon was that the claimant could have avoided the incident by reversing. This is not gross negligence. The female motorist could equally have reversed. There was no infringement of health and safety rules. The allegation should not have been upheld.6.39 The third allegation namely any conduct which undermines the trust which exists between the Company and the employee was upheld by Mr Sweeney. In effect, however, this duplicated the first allegation namely that the claimant’s swearing had resulted in a complaint from the Council and that behaviour was unacceptable.6.40 I find there was an element of "overcharging" and both Mr Sweeney and Mr Hudson had a closed mind to the claimant's case. This is illustrated by the fact that allegation number 2 was upheld. It is further illustrated by the fact that as I have already noted that the grounds of appeal were not specifically addressed6.41 I add that on appeal that all these 3 allegations were also upheld.6.42 The long and the short of matters were that the claimant had sworn and called Mr A a ‘wanker’ and made a gesture towards him. That was a finding which Mr Sweeney was entitled to find.6.43 In my judgment the real issue in this case is whether dismissal for gross misconduct fell within the band of responses of a reasonable employer. I will return to this later in my findings.
Conclusion
[7]I am satisfied that the respondents have established on the balance of probabilities that the reason the claimant was dismissed was by reason of conduct. That is a potentially fair reason. It follows therefore the respondents have surmounted the first hurdle.[8]The second issue I need to determine is whether the respondents dismissed on the basis of a reasonable investigation and held a reasonable belief for that decision. I have already dealt with this matter in my findings of fact. I am only satisfied that they had reasonable grounds to believe on a reasonable investigation that the claimant used the word wanker to Mr A disciplinary action was justified on the ‘wanker’ issue.[9]The final issue is whether the dismissal fell within the band of responses of a reasonable employer.[10]I am conscious that it is not for me to determine what I would have done in this particular case. It is for this respondent. I have to ask whether the respondent acted out with the band of responses of a reasonable employer.[11]In looking at an issue of swearing there are a number of factors that I take into account.[12]The first is the status of the person who utters the bad language. As a generalisation a Senior Manager who utters bad language in front of other staff may possibly be more culpable than a more junior member of staff.[13]Secondly I take into account the issue of provocation. I am satisfied that there was a degree of provocation from the female motorist and Mr A That said, the claimant could have conducted himself in a better manner by reversing his vehicle.[14]I take into account it was one word. It was not a tirade of abuse. It was not as though Mr A and the claimant were toe to toe. The claimant was driving off.[15]I take into account that the claimant did apologise to his manager.[16]I take into account the claimant’s record which was unblemished. He was a long serving employee. Neither Mr Sweeney nor the appeal officer Mr Hudson took this into account. The claimant had an unblemished record and this was an isolated incident taken out of character with an element of provocation from others.[17]It is with some hesitation I have come to the conclusion that dismissal was outside the band of reasonable responses. That is not to say, however, that disciplinary action should not have been taken against Mr Cummins and perhaps severe disciplinary action at that in the circumstances.[18]The claimant was representing the respondents. It cannot be appropriate to use bad language towards others.[19]In my judgement the claimant would not have faced disciplinary proceedings had he not used the ‘wanker’ term. His conduct was culpable. He is therefore, to some extent, brought these proceedings upon himself. This conduct occurred prior to dismissal and was known to the respondent and indeed the respondent based much of its decision upon that conduct. I have therefore come to the conclusion that the claimant has engaged in culpable conduct. It follows therefore that I must make a reduction from any compensation that he may be entitled to, to take into account this culpable conduct.[20]I have looked carefully at the guidance given in Hollier v Plysu Limited. I take the view that the employee is more than slightly to blame. He bears responsibility in part. I have therefore decided that any compensatory award should be reduced by 50%.[21]I do not make any finding under Polkey. for the procedural and substantive errors I have identified I am not satisfied that if this employer had followed a fair procedure this claimant would have been fairly dismissed
Conclusion
[1]The Tribunal had before it: -1.1 A bundle of documents consisting of 128 pages.1.2 A statement of Mr Garry Jamieson, lodged on behalf of the Respondent.1.3 A statement of the Claimant.1.4 The Respondent’s written submissions.[2]The Tribunal heard oral evidence from both Mr Cummins and Mr Jamieson. Background 10.5 Reserved judgment with reasons – rule 61 1 March 2017
Background
[3]On 8 January 2018 the Tribunal determined that the Claimant was unfairly dismissed by the Respondent, but caused or contributed to his dismissal as to 50% (“the liability hearing”).[4]The matter was listed for a remedy hearing on 27 March 2018.[5]On 27 March 2018, after the Tribunal had explained to the Claimant the orders it could make in compliance with the provisions of section 122(2) of the Employment Rights Act 1996 (“ERA 96”), the Claimant indicated he wished the Tribunal to consider reinstatement and/or reengagement[6]The Respondent had not been forewarned that the Claimant would seek such a remedy, either in the claim form or in any subsequent correspondence. In the circumstances the Respondent applied for, and was granted, an adjournment with a consequential costs order in its favour. The Tribunal gave directions.[8]On 11 June 2018 (“the first remedy hearing”) the Respondent was ordered to reinstate the Claimant on terms set out therein. In essence the Respondent was to pay the Claimant £7,415.85, make payment into the pension scheme as if the Claimant had not been dismissed, subject to the Claimant paying the employee contributions, and for the order to be complied with by Monday, 2 July 2018.[9]At the first remedy hearing it was agreed that there was a two-stage test in relation to reinstatement. The Respondent was entitled to argue practicability both at the initial stage, and again at stage 2 if reinstatement order was made but the Respondent failed to comply with the same.[10]On 28 June 2018 (page 51) the Respondent informed the Claimant that it was not prepared to reinstate him.[11]At the hearing today the first part of the proceedings addressed what is known as the section 117 ERA 96 question.[12]Section 117 of the ERA 96 provides as follows: - “(1) An [employment tribunal] shall make an award of compensation, to be paid by the employer to the employee, if –(a) an order under section 113 is made and the complainant is reinstated or reengaged, but(b) the terms of the order are not fully complied with (ii) subject to section 124 … the amount of compensation shall be such as the tribunal thinks fit having regard to the loss sustained by the complainant in consequence of the failure to comply fully with the terms of the order. 10.5 Reserved judgment with reasons – rule 61 2 March 2017 (2) (AA) There shall be deducted from any award under subsection (i) the amount of any award made under section 112(5) at the time of the order under section 113. (iii) subject to subsections (i) and (ii) … if an order under section 113 is made but the complainant is not reinstated or reengaged in accordance with the order, the tribunal shall make – (a) an award of compensation for unfair dismissal (calculated in accordance with sections 118 to [126], and (b) except where this paragraph does not apply, an additional award of compensation of [an amount not less than 26 nor more than 52 weeks pay] to be paid by the employer to the employee. (4) Subsection (3)(b) does not apply where – (a) the employer satisfies the tribunal that it was not practicable to comply with the order”. (b) The Tribunal was therefore concerned with the submission under section 117(4) of the ERA 96, that is the stage 2 argument. At stage 2 the burden is upon the Respondent to prove that it was not practicable to comply with the order.[13]Impracticability is a question of fact for the Tribunal, not a matter of whether the employer’s views fall within a band of reasonable responses.[14]At stage two the question of practicability is a question of objective fact and the Tribunal should not substitute its commercial judgment to that of the employer – Port of London Authority v Payne [1993] EWCA Civ 26.[15]The mere fact that the Tribunal held it was practicable to reinstate at the first remedy hearing is not binding on the Respondent at stage two. The stage one determination is provisional. Findings of fact in respect of practicability[16]The Respondent had a contract with Leeds City Council to provide a responsive repairs service.[17]Under the terms of that contract Leeds City Council could require the Respondent to replace an employee. The contract bears careful study. The document produced was originally between Leeds City Council and Morrison Facilities Services Limited. It is not disputed that the Respondent now stands in the shoes of Morrison Facilities Services Limited.[18]Paragraph 7.9 of the contract reads (page 64): - 10.5 Reserved judgment with reasons – rule 61 3 March 2017 “The contractor shall replace any person who in the sole opinion of the employer’s contract manager … is not a fit and proper person to be afforded access to the Dwellings, … within 24 hours of receiving a written demand to do so from the employer. Provided always that such a written demand is reasonable and that, save where the employer requires the removal of any person for safety, security or operational reasons, the employer shall first discuss any concern with the contractors and shall afford the contractor reasonable opportunity to meet such concerns”.[19]It is not disputed that the Claimant worked on the Respondent’s contract with Leeds City Council.[20]Mr Jamieson is employed by the Respondent as head of business improvement. He was contract manager and principal contact between the Respondent and Leeds City Council.[21]The Respondent relied upon an e-mail from Mr Robert Gorre, “repairs manager, safeguarding lead officer – response of repairs” sent to Mr Jamieson on 26 June 2018.[22]The e-mail (78) in essence thanked Mr Jamieson for the update as regards the Employment Tribunal’s judgment to reinstate Mr Cummins. Mr Gorre stated he was aware of the circumstances of Mr Cummins’ dismissal. He stated that tenants were required to comply with a number of core values including that they must not behave antisocially, cause a nuisance or harass other people. Leeds City Council required its partners to comply with similar standards. Mr Gorre stated that the Claimant had failed to demonstrate those standards while working with Mears and Leeds City Council would not “under any circumstances” allow the Claimant to be reemployed on any of Leeds City Council’s contracts.[23]This e-mail was written following telephone discussions between Mr Jamieson and Mr Gorre. No note was kept of that discussion.[24]There was no other written correspondence.[25]Mr Jamieson accepted that he was friendly with Mr Gorre.[26]Mr Jamieson accepted that he had not provided Mr Gorre with the judgment from the liability hearing. Mr Gorre therefore could only be aware of the circumstances of the Claimant’s dismissal from the perspective of the Respondent, which the Tribunal had found to be unfair.[27]He had also not provided Mr Gorre with the Tribunal’s judgment from the first remedy hearing. Mr Gorre had written the e-mail based solely by what he had been told by Mr Jamieson.[28]Mr Jamieson did not suggest that he had even read the judgment of the Tribunal from either the liability hearing or first remedy hearing to Mr Gorre. 10.5 Reserved judgment with reasons – rule 61 4 March 2017[29]Mr Jamieson accepted in cross-examination that had the Claimant been successful in his internal appeal there would have been no discussion with Mr Gorre.[30]Mr Gorre was not aware that the Claimant had a long and unblemished disciplinary record.[31]He did not know that the person the Claimant had called “a wanker” was a person who Leeds City Council classed as, according to their own records, “Very violent person was abuse [sic] towards two members of staff at Morley NHO. Do not visit alone”. He therefore had no information to the attitude of the tenant or the considerable provocation the Tribunal found the Claimant faced.[32]Although Mr Gorre does refer in his e-mail to being aware of the circumstances of Mr Cummins’ dismissal Mr Jamieson accepted that he was only aware of information given to him by Mr Jamieson.[33]The burden of proof is upon the Respondent at stage 2.[34]Other than the e-mail from Leeds City Council no witness was called to support the Respondent’s position.[35]The Tribunal is not satisfied that the Respondent discharged the burden of proof that falls upon it.[36]The Tribunal has reached this conclusion principally because there is no cogent evidence Leeds City Council were aware of all the facts.[37]In addition, Mr Jamieson, despite knowing of the Tribunal’s judgement did not challenge Mr Gore on whether his demand was reasonable and did not make any representations to Mr Gorre in accordance with the contract.[38]The Tribunal noted the Respondent had other contracts but accepted Mr Jamison’s evidence that it was impracticable to re-instate the Claimant for the reasons he gave.[39]The Tribunal concluded that on the basis of the evidence presented to the Tribunal the burden had not been discharged.[40]It follows therefore that the Tribunal then went on to consider the issue of an additional award of compensation. An additional award of compensation is between 26 to 52 weeks.[41]The Respondent made submissions as to what was an appropriate figure although expressly conceded (paragraph 35 of the written submissions) that mitigation and/or contributory fault was not to be considered. The Respondent’s case, however, was that at the date of the first remedy hearing the Claimant was not working and therefore a week’s pay should be assessed as nil. 10.5 Reserved judgment with reasons – rule 61 5 March 2017[42]The Tribunal has a discretion as regards whether to award 26, 52 or any figure in between by way of an additional award. The Tribunal has concluded that an award at the bottom end of the range is appropriate. It has come to this conclusion because the Respondent has not demonstrated a complete wilful defiance. It did make inadequate enquiries for reasons already outlined but the Tribunal is not satisfied it has surmounted the statutory test. An award of 26 weeks is therefore appropriate.[43]The Tribunal does not accept that there should be an award of 26 weeks’ pay at a nil rate. Whilst the Tribunal found had the Claimant been reinstated he would have been receiving contractual sick pay it would have been exhausted just before reinstatement. That does not in the Tribunal’s judgment mean the award should be assessed on no weekly pay whatsoever. The purpose of section 117(3) is to act as a positive incentive for an employer to comply with a reinstatement order. Had the Claimant been reinstated in accordance with the Tribunal’s order the Claimant would have been working and receiving full pay together with all other contractual benefits for the further reasons set out later in this judgement[44]The award should therefore be based upon 26 weeks gross pay. Gross pay was £521.67 per week. The weekly cap does not apply. This figure is agreed by the Respondent (60).[45]The additional award is therefore £13,563.42 (26 weeks x £521.67). Compensatory award[46]The second part of the hearing dealt with the Claimant’s basic and compensatory award. The statutory provisions dealing with a basic award are found in sections 119 to 122 ERA 96. The provisions as regards to a compensatory award is found in sections 123 to 124 ERA 96. Findings of fact re compensation[47]The Claimant was born on 3 March 1958. He is therefore aged 60.[48]His continuous employment began on 1 March 2009.[49]The effective date of termination was 12 May 2017.[50]The statutory cap on a week’s pay as at the effective date of termination was £489.[51]The Claimant’s net weekly salary was £380.30 immediately before the effective date of termination.[52]The Claimant was employed as a plumber. He only had a certificate for basic plumbing skills.[53]Basic plumbing skills are assessed at level 2.[54]A level 3 plumber is classified as gas safe. This means they can work on boilers. A level 2 plumber cannot. 10.5 Reserved judgment with reasons – rule 61 6 March 2017[55]A CSCS card is issued to a fully qualified plumber, that is a person who has reached level 3.[56]The Tribunal accepted that the Claimant did not have a CSCS card as a holder required an advanced plumbing qualification which the Claimant did not have.[57]No evidence was put before the Tribunal as to how much it would cost to acquire the necessary qualifications. The only helpful evidence on the point came from Mr Jamieson who indicated that he had considered seeking to upskill the Claimant, but to retrain him as a qualified gas engineer would take approximately 18 months.[58]Some plumbers are classed as multi skilled. In order to be classed as multi skilled a plumber must have in addition a minimum of NVQ level 2vcarpentry/joinery skills. From the evidence before the Tribunal such plumbers are in some demand as kitchen fitters.[59]Again, no information was before the Tribunal as to the cost of undertaking an NVQ Level 2. The most helpful evidence, again, came from Mr Jamieson who indicated it would take approximately 24 months to obtain such a qualification.[60]Prior to termination the Claimant had a good sickness record. He had been absent twice in two years prior to termination. The total absence was between 6-10 days. The first occasion was due to a bereavement and the second due to an infection.[61]Although the Claimant had a back operation in 1988 he had never had time off from his employment with the Respondent due to a bad back.[62]Since termination the Claimant has been supported by his children and his own savings. He did not believe in claiming benefits. He has not received Jobseekers Allowance, Income Related Employment Support Allowance, Income Support or Universal Credit.[63]The Claimant suffered depression following dismissal which was not diagnosed until December 2017 (83).[64]Although diagnosed with depression the Claimant did arrange for approximately 250 flyers to be distributed in late 2017 in order to seek work. They produced no work.[65]In December 2017/early January 2018 the Claimant signed up with Hayes Recruitment.[66]In April 2018 the Claimant started searching the website Indeed Jobs for employment. 10.5 Reserved judgment with reasons – rule 61 7 March 2017[67]In June 2018 he signed up and started searching the website Total Jobs.[68]The Tribunal is satisfied from the evidence presented by the Respondent that there are numerous vacancies for either multi skilled plumbers or fully qualified plumbers who can undertake heating engineering. The Claimant is neither.[69]The Tribunal is satisfied that the Claimant has made numerous job applications, certainly after March 2018 but without success.[70]Although a fit note was issued to the Claimant in March 2018 it indicated the Claimant was fit to work with some adjustments. The Claimant’s case, and the Tribunal accepted it, was that he asked his GP to support a return to work.[71]The Tribunal reminded itself that the Claimant could only recover losses that are attributable to action taken by the Respondent. The Tribunal has noted the case of Devine v Designer Flowers Wholesale Florists Sundries Limited [1993] IRLR 517 EAT. In that case the employee’s dismissal caused her to suffer anxiety and depression which rendered her unfit for work. The EAT held that the fact that the employee’s incapacity was caused by the unfair dismissal did not necessarily mean that the employee was entitled to compensation for the whole of the period of incapacity. It was for the Tribunal to decide how far an employee’s losses were attributable to action taken by the employer and to arrive at a sum that was just and equitable.[72]The Tribunal applied those principles.[73]The Tribunal have taken careful note of the Claimant’s previous sickness record.[74]The Tribunal have noted the Claimant had no history of depression.[75]The Tribunal is satisfied that this was a Claimant who had never been dismissed in 40 years of work. It is satisfied that the illness would not have manifested itself but for the dismissal.[76]The Tribunal have concluded that the illness, namely the Claimant’s depression, was caused by the dismissal and not by the manner of the dismissal itself.[77]The Tribunal is satisfied that the Claimant’s illness was not such that he could not start to consider work in late 2017 and certainly by March 2018 was keen to be signed off by his doctor so he could seek work.[78]The Tribunal had reminded itself that it is for the Claimant to take reasonable steps to mitigate his losses suffered as a consequence of the unlawful act. That said the burden of proving a failure to mitigate is on the Respondent – see Fyfe v Scientific Furnishings Limited [1989] IRLR 331.[79]It is insufficient for the Respondent merely to show that the Claimant failed to take a step that it was reasonable for the Claimant to take: rather the 10.5 Reserved judgment with reasons – rule 61 8 March 2017 Respondent must show that any failure was unreasonable. The Tribunal in looking at mitigation have considered what steps the Claimant should have taken to mitigate his loss, whether it was unreasonable for the Claimant to have failed to take any such steps and if so, the date from which an alternative income would have been obtained. The Tribunal concluded looking at the evidence in totality that the Respondent had not demonstrated the Claimant had failed to mitigate his loss[80]The Tribunal firstly dealt with the issue of the failure of the Claimant to obtain, or to start to obtain further qualifications. It was not unreasonable for him to not to do so. In evidence that he was effectively impecunious and dependent upon his children is credible and whilst he did not make any direct enquiries it is not implausible that the cost of such courses would be expensive.[81]The Tribunal does, however, accept that obtaining further qualifications will assist the Claimant but notes that such qualifications will take, on the Respondent’s own evidence, between 18 to 24 months to obtain. The Tribunal is also conscious that the Claimant is not far from state retirement age. He is not to be criticised for any failure from now on to obtain further qualifications[82]The second aspect the Tribunal looked at was the bundle of jobs placed before it by the Respondent. The Claimant is entitled to say with justification that many of those adverts relate to either multi skilled plumbers or plumbers who have qualifications to install or service central heating.[83]Further, some vacancies required the Claimant to have his own van. The Claimant did not have a van. A van was provided by the Respondent.[84]That said, studying the documentation (85 to 104) there is some evidence that there are potential vacancies available to the Claimant. By way of illustration only, although there are others, there is an advertisement for three plumbers in Barnsley earning £23,735 per year. They are required to be qualified to level 2. The Claimant was qualified to level 2. The Tribunal noted the salary was somewhat lower than enjoyed by the Claimant. The Claimant’s gross salary was £27,126.36 per annum.[85]Doing the best it can the Tribunal concluded that the Claimant would obtain alternative employment by November 2018 although earning less than he currently earnt, with a gross salary difference of approximately £3400. The Tribunal noted that the Claimant had progressed with the Respondent despite his limited qualifications and considered that the chances of the Claimant progressing with a future employer to a sum approaching his former salary would take 18 months.[86]The Claimant had the benefit of contributory pension. It was not a defined benefit scheme. The Respondent paid £180.84 into the pension per month. Given that the Claimant is reasonably close to retirement the Tribunal worked on the contribution method in assessing loss.[87]The Tribunal has no evidence before it as to what pension a future employer would supply to the Claimant. It would be at least the state minimum but might 10.5 Reserved judgment with reasons – rule 61 9 March 2017 be more given the apparent shortage of plumbers. A great deal would depend upon the nature of the Respondent’s future employer. Doing the best it can and bearing in mind the Respondent’s scheme is generous, the Tribunal have worked on an ongoing pension loss of £120 per calendar month ceasing in May 2020 (18 months’ time)[88]The Claimant’s losses are therefore as follows: - Basic award[89]The basic award under section 119 is agreed at £5,868.[90]The Tribunal determined that there was contributory conduct which occurred prior to dismissal which it placed at 50%. There should therefore be a deduction under section 122(2) ERA 96 of 50%. The net basic award is therefore £2,934.[91]In terms of the compensatory award the Tribunal first of all dealt with the prescribed element, that is the loss of wages from the effective date of termination to the date of assessment.[92]The calculation is therefore, 12 May 2017 to 25 September 2018.[93]The time period is 71.2 weeks which must be multiplied by the Claimant’s net pay of £380.30. This produces a total of £27,077.36.[94]The Claimant is entitled to arrears of pension contributions from 12 May 2017 to 25 September 2018 which the Respondent accepted had not been paid.[95]This produces an approximate figure of £2576.97.[96]The total is therefore £27077.36 + £2576.97 = £29654.33[97]There must then be deducted from this sum the 50% for contribution under section 123(6) ERA 96. This then produces a total of £14827.16.[98]There must however be deducted from this sum the payment already made by the Respondent of £7,415.58.[99]This produces a total of £ 7411.58 (£14827.16 - £7415.58).[100]Turning to the non-prescribed element the Tribunal awards future loss of wages of 9 weeks’ pay.[101]The future loss is therefore 9 weeks x £380.30 which produces a total of £3,422.70. which is when the Tribunal estimated the Claimant will get another job.[102]He will also have pension payments of £180.84 pm for 9 weeks which totals £375.59. 10.5 Reserved judgment with reasons – rule 61 10 March 2017[103]The total until he obtains alternative employment is therefore £3798.29.[104]The Claimant then has an ongoing loss of £3400 per annum for a period of 18 months. Assuming the Claimant is a basic rate tax payer (and there was no evidence to the contrary) the net loss is 78 weeks x £52.31 which produces a total of £4080.18.[105]The Claimant has lost pension contributions being the difference the Respondent would have paid and the sum the Tribunal has estimated the Claimant will receive with a new employer. The sum is 18 months x £120 = £2160.[106]The Tribunal allows the Claimant £500 for loss of statutory rights.[107]The future loss is therefore £3,798.29 + £4080.18 + £2160 + £500 which produces a total of £.10538.47[108]Again, there must be a reduction of 50% to consider contributory fault producing a future loss of £5269.23.[109]The total therefore is £2,934 + £7411.58 + £5,269.23 = £15614.81.[110]This is below the statutory cap under section 124(1) of the ERA so no further adjustment is required.[111]There should however be added to this sum the additional award of £13,563.42 which is unaffected by contribution.[112]The total sum therefore payable to the Claimant is £15614.81 + £13,563.42 = £29178.23.[113]As the total sum is under £30,000 the tribunal does not need to do any grossing up for sums over £30,000.