Mr J Train v DHL Services Ltd sued as DHL Supply Chain: 1805138/2021

EMPLOYMENT TRIBUNALS

Case No 1805138/2021

Between

Mr J TrainClaimant

DHL Services Ltd sued as DHL Supply ChainRespondent

Before

Employment Judge Moxon

In person for claimant

Mr Dunn (instructed by counsel) for respondent

Date 20 January 2022

JUDGMENT

[1]The name of the respondent is amended by consent to DHL Services Limited. UPON the claimant’s complaint of unfair dismissal under the Employment Rights Act 1996:

[2]The Claimant was unfairly dismissed by the Respondent. Remedy Basic award

[3]It is just and equitable to reduce the basic award by 10% on account of the claimant’s conduct.

[4]The respondent shall pay a basic award of £10,502.35 net of the reduction in paragraph 3. Compensatory award

[5]UPON the claimant having suffered no financial losses consequent upon the dismissal, there shall be a compensatory award in the sum of £500 to compensate for loss of statutory rights only. Case No: 1805138/2021

[6]There shall be no deduction from the award under the principles in Polkey v AE Dayton Services Limited.

[7]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. The award will be increased by 10%.

[8]The claimant contributed to his own dismissal such that it is just and equitable to make a reduction to the award of 10%.

[9]Accordingly, the award is in the sum of £495. Total

[10]The respondent shall pay the basic and compensatory awards to the claimant in the aggregate sum of £10,997.35 by 4 February 2022. JUDGMENT having been sent to the parties on 20th January 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

These reasons are supplied at the request of the Respondent.

Introduction

[1]The Claimant was employed by the Respondent as a Home Delivery Driver until his dismissal with notice on 13th May 2021. There had been some dispute as to when the employment started but at the outset of the hearing it was agreed that it started on 27th August 2002.

[2]By a claim form, presented on 27th September 2021, the Claimant claimed that he was dismissed unfairly. The Respondent filed a response on 28th October 2021, resisting the claim.

[3]In summary, the Claimant was given a final written warning on 13th May 2021 as a consequence of driving without inserting properly or at all his tachograph card into the vehicle’s tachograph machine. At the time he had a final written warning on his record, issued on 21st August 2020 for an incident where he had used abusive language. It was therefore determined that he should be dismissed with notice. The Claimant’s appeal against the dismissal was rejected upon appeal on 17th August 2021.

The hearing

[4]At the outset of the hearing I allowed the uncontested application to amend the name of the Respondent to ‘DHL Services Limited’, pursuant to rule 34 of the procedure rules. The amendment caused no prejudice to either party.

[5]The Respondent had helpfully compiled a hearing bundle, which consisted of 267 pages and had provided witness statements from Mr Lee Miller, Transport Manager, who was responsible for the disciplinary investigation and hearing, and Ms Angela Fawcett, Transport Cluster Manager, who was responsible for the appeal. I also had a witness statement from the Claimant. I heard evidence from all three witnesses. I heard closing submissions from the Claimant and also Mr Dunn, who had provided a detailed and helpful skeleton argument on behalf of the Respondent.

[6]The hearing was conducted remotely via CVP platform. The technology worked without difficulty and no prejudice was caused to either party.

[7]I gave my judgment and reasons orally to the parties on the day of the hearing. Issues

[8]The following issues were agreed between the parties at the outset of the hearing: 1) What was the principal reason for the Claimant’s dismissal and was it a potentially fair reason under sections 98(1) and (2) of the Employment Rights Act 1996? The Respondent asserts that it was a reason relating to the Claimant’s conduct. 2) If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that misconduct as a sufficient reason to dismiss the claimant? In particular the tribunal will consider whether: i. there were reasonable grounds for that belief; ii. at the time the belief was formed the respondent had carried out a reasonable investigation; iii. the Respondent otherwise acted in a procedurally fair manner; iv. dismissal was within the range of reasonable responses. The Claimant asserts that the dismissal was unfair because: i. Dismissal was predetermined; ii. He was treated differently to other employees; iii. The Respondent’s tachograph infringement policy was not adhered to; iv. There was a failure to reasonably investigate, in that Kenny Robson was not interviewed and the suggestion that hand santiser may have affected the equipment was not reasonably explored. Kenny Robson was an agency worker and the Claimant’s ‘Driver’s Mate’ on 19th March 2021; and v. In all the circumstances, dismissal was not within the range of reasonable responses. 3) If the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the Claimant would still have been dismissed had a fair and reasonable procedure been followed. 4) Did either the Claimant or the Respondent unreasonably fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures and, if so, should any adjustment be made to any compensatory award and, if so, to what extent. 5) Would it be just and equitable to reduce the amount of the Claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, as set out in section 122(2) of the 1996 Act, and if so to what extent? 6) Did the Claimant, by his blameworthy or culpable conduct, cause or contribute to his dismissal to any extent, and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award under section 123(6)?

The law

[9]There is no dispute that the Claimant was dismissed by the Respondent. The Respondent must show that it had a potentially fair reason for dismissing the Claimant, pursuant to section 98(2). The Respondent relies upon the Claimant’s conduct as the permitted reason for the dismissal.

[10]If the Respondent shows that it had a potentially fair reason for the dismissal, I must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.

[11]Section 98(4) provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[12]In misconduct dismissals, I must apply the guidance in British Home Stores Ltd v Burchell

[1978] IRLR 379

, Employment Appeal Tribunal. I must decide whether the Respondent had a genuine belief in the Claimant’s conduct; whether the Respondent held such genuine belief on reasonable grounds and reached that belief after having carried out a reasonable investigation. The objective standard of the reasonable employer must be applied to all aspects of the question of whether an employee was fairly and reasonably dismissed. The question is whether the employer’s investigation and decision fell within the band or range of reasonable responses which a reasonable employer may have adopted.

[13]It is immaterial how the I would have handled the events or what decision I would have made, and I must not substitute its view for that of the reasonable employer. Factual background

[14]The Claimant was employed as a Home Delivery Driver by the Respondent from 27th August 2002.

[15]He received a final written warning on 21st August 2020 arising from an incident on 12th August 2020 when he used abusive language towards a manager. The warning letter detailed that it would remain operational for 12 months and that: “During the live period of this warning, should you commit further misconduct offences for which disciplinary action is taken, this warning may be taken into account when determining the level of disciplinary action in accordance with the disciplinary and grievance policy.”

[16]As a driver, the Claimant was required to ensure that tachograph data was recorded to ensure that he and the Respondent were complying with relevant regulations. For the final 10 years or so of his employment, the data was collected by use of a tachograph card which was inserted into a tachograph machine within the vehicle he as driving. This was done at the start of the shift. After a shift, the Claimant would then insert the card into another machine in the office which would record data, such as how long he had driven for the day.

[17]Failing to use the tachograph equipment correctly could result in the Respondent receiving fines for breaching requisite regulations. As such, the use of the equipment is strictly enforced and the Respondent has a specific ‘Tachograph Infringement Policy’, a copy of which was provided in the hearing bundle. The policy outlines ‘major infringements’, which include driving without a functional card. For ‘major incidents’, the policy outlines what action is taken. There is nothing within the policy that differentiates between ‘infringements’ and ‘incidents’ nor were any identified by Mr Miller when asked during the hearing. For a first incident within a 12 months period, the action is ‘Specific Retraining signed off’ and for a second incident there is ‘Counselling & Specific retraining sign off’”. Upon a third major incident in 12 months, the action is “Full Investigation and Company Disciplinary Process may be invoked”.

[18]Below the guidance there is the following note: “The above guide will apply under normal circumstances. Should after investigation a serious/extreme vehicle incident be found, or misleading information established, then the appropriate stage of the company disciplinary action may be taken.”

[19]It was agreed between the parties that there had been no tachograph infringements by the Claimant in the 12 months preceding 19th March 2021.

[20]The Claimant was working in a vehicle on 19th March 2021 alongside a driver’s mate, Mr Kenny Robson, who was an agency worker. The Claimant details that the day was unremarkable save for at the end of his shift, when he placed his tachograph card into the office-based machine, it flashed red. He does not appear to have thought much more of it until he received a letter from the Respondent, dated 25th March 2021, informing him that he was subject to a disciplinary investigation. The letter outlined the allegation of driving without having his card inserted into the tachograph machine on 19th March 2021.

[21]The Respondent had an engineer assess the machine and the Claimant’s card and found that neither of them had a fault. In fact, the same card and machine had worked together on 20th March 2021.

[22]During the disciplinary investigation, the Claimant forwarded an email (page 138 of the bundle) from Mr Robson, stating: “I Ken robson went out with j.train on argos run had 15 min break in the yard and went on our run had a 30 minn break then dine rest of run got back to yard took his card out downloaded it then went home”

[23]Mr Miller sought to obtain further information from Mr Robson both prior the disciplinary hearing and on the date of the hearing, but Mr Robson refused to answer any questions or engage with the process.

[24]The disciplinary hearing was held on 13th May 2021. It was chaired by Mr Miller. The Claimant was in attendance and was represented by his union representative, Mr Ian Taylor.

[25]Mr Miller issued a final written warning and, in light of the previous warning on the Claimant’s record, made the decision to dismiss him with notice. Within his findings he stated: “You raised a query regarding the Tachograph Infringement Policy 2015 and asked why the Disciplinary procedure was instigated. This is due to the severity of the allegation i.e. a Breach of EU Driving Regulations and I can confirm that this is consisted with other cases of this mature in the Northern Region. All the evidence gained from Tachomaster (including data from your card and the vehicle) suggests that your card was not inserted, or nor inserted correctly on the day in question We have also had an engineer inspect the tachograph unit in the vehicle, the conclusion was that there was no fault. Both your card and the vehicle tachograph unit were shown to be fully functioning pre and post this incident. Your representative questioned whether anti bacterial hand sanitiser could have affected the card, I considered this, however, given that we have all been using hand sanitisers since the beginning of the pandemic, this issue would have arisen on numerous occasions throughout the business….”

[26]The Claimant appealed that decision and attended an appeal investigation hearing chaired by Ms Fawcett on 17th August 2021. The Claimant was again represented by Mr Taylor. During that meeting the Claimant maintained that he had inserted the card in the vehicle’s machine and that there had been no indication on the machine that the card was inserted incorrectly. He stated that the disciplinary process had not been thorough as Mr Robson had not been interviewed. Ms Fawcett confirmed to me that she did not seek to speak to Mr Robson as part of the appeal process nor did she recall whether he was still working for the Respondent at the time.

[27]Ms Fawcett upheld the dismissal. The outcome letter sent to Claimant, and dated 20th September 2021, summarised the ‘key points’ which included the following: “You asked why your crew mate from that day, Ken Robson, was not interviewed. I discussed this with Lee Miller, who said that the investigation documents included a written statement from Ken/ There were no queries or points of concern raised by yourself or by anyone involved in the investigation of disciplinary meetings with regard to the statement, therefore an interview was not required”.

Conclusions

[28]I am satisfied that all three witnesses sought to assist and give honest evidence.

[29]The question I need to answer is whether the dismissal was fair or unfair. This is a two-stage process. The first stage is for the Respondent to show a potentially fair reason for dismissal, and secondly, if that is shown, the question then arises whether dismissal was fair or unfair.

[30]The conduct of an employee is a potentially fair reason. I am satisfied that the principal reason for the Claimant’s dismissal was conduct, namely a tachograph infringement in that the Claimant had not used his tachograph card properly or at all on 19th March 2021. I am also satisfied that the Respondent genuinely believed that the Claimant had committed the conduct in question.

[31]I am satisfied that there were reasonable grounds for that belief in light of the data received from the card on 19th March 2021, specifically that there had been no data recorded, and the engineer report which confirmed that there was no error with the machine or the card.

[32]I must then consider whether the Respondent’s genuine belief in the Claimant’s misconduct was reached following a reasonable investigation. I find that the investigation was not reasonable and fell outside the range or band of reasonable management responses in the circumstances. I find that there were three material features of procedural unfairness: i. The Claimant hypothesised that his use of hand santiser may have impacted upon the ability of the tachograph machine to read his card on 19th March 2021. The Respondent dismissed that hypothesis on the basis that hand santiser had been used extensively for approximately 12 months by many drivers without any similar issues. However, despite having engaged an engineer to inspect the card and the machine, the hypothesis was not put to the engineer for comment. I find that to have been unreasonable and unfair. An investigator charged with carrying out inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. No reasonable employer would have failed to put the Claimant’s case to the engineer for comment; ii. The Claimant had adduced an email from Mr Ken Robson, his drivers’ mate on 19th March 2021, which states that he had seen the Claimant remove his tachograph card from the machine at the end of his shift. That evidence was material to the Claimant’s defence. I am not satisfied that sufficient effort was made by the Respondent to obtain further details from Mr Robson, despite arguing that the email did not make clear what day he was referencing. Mr Miller stated that he had spoken to Mr Robson but that Mr Robson refused to provide any further details or to be involved. That is not adequate. Whilst he was an agency worker and not an employee, he was nevertheless a subordinate of the Respondent and should have been compelled to provide a detailed statement about events on 19th March 2021 as a reasonable management instruction. It was unreasonable for Mr Miller not to have done so. He states that he believed that Mr Robson was scared of the Claimant. He had not asked Mr Robson about this. I find his assertion that Mr Robson was scared of the Claimant to be nothing more than speculation and it in no way explains the failure to compel him to answer material questions; and iii. Despite the lack of engagement with Mr Robson being raised during the appeal proceedings, Ms Fawcett did not obtain any further information from Mr Robson nor did she make any attempt to speak to him. I find that this was procedurally unfair and unreasonable regardless of whether Mr Robson was still working with the Respondent, something that Ms Fawcett was not sure of either way. The Respondent’s failure to make reasonable efforts to obtain evidence from a key witness fell outside the band of reasonableness.

[33]I then considered whether dismissal was within the range of reasonable responses. I find that it was not. I note that the Claimant was subject to a final written warning at the material time for misconduct and the letter had warned him that any further conduct issues may result in dismissal. This was not confined to misconduct of the same kind as that for which the warning was administered. I therefore note that any disciplinary warning within the 12 months after that final written warning could properly result in dismissal.

[34]However, I find that disciplinary action was unreasonable and outside the band of reasonableness in this case as it was contrary to the Respondent’s own guidance, namely the tachograph infringement policy.

[35]It bears repeating that the policy outlines ‘major infringements’, which include driving without a functional card. For ‘major incidents’, the policy outlines what action is taken. Upon being asked in oral evidence whether there was a difference between ‘infringements’ and ‘incidents’, none were outlined by Mr Miller. For a first incident within a 12 months period, the action is ‘Specific Retraining signed off’ and for a second incident there is ‘Counselling & Specific retraining sign off”. Only upon a third major incident having occurred in 12 months is the policy: “Full Investigation and Company Disciplinary Process may be invoked”.

[36]Below the guidance there is the following note: “The above guide will apply under normal circumstances. Should after investigation a serious/extreme vehicle incident be found, or misleading information established, then the appropriate stage of the company disciplinary action may be taken.”

[37]It was agreed between the parties that there had been no tachograph infringements by the Claimant in the 12 months preceding 19h March 2021.

[38]Mr Miller stated that the Respondent had departed from the usual action for a first offence within 12 months as the Claimant had given misleading information. I reject that evidence. There had been no finding of the Claimant having sought to mislead. The allegation against the Claimant had been that he had not inserted his tachograph card within the machine properly or at all. The Claimant’s response was that he had placed it into the machine.

[39]The allegation and the defence were not mutually exclusive. It was possible that the card had been placed in the machine but improperly. Further, the Claimant’s case was corroborated by Mr Robson.

[40]The finding of Mr Miller’s disciplinary process was: “All the evidence gained from Tachomaster (including data from your card and the vehicle) suggests that your card was not inserted, or nor inserted correctly on the day in question”.

[41]That is not a finding that the Claimant had sought to mislead. There was no finding of him seeking to mislead within the outcome letter. Further, when Mr Miller said, when giving evidence before the Tribunal, that no positive determination had been made as to whether the card had not been placed inside of the machine or whether it had been inserted but improperly.

[42]In fact, the overwhelming evidence is that the Claimant did insert the card but not correctly. It is highly unlikely that a driver of almost 20 years’ experience, having used the equipment for approximately 10 years, would fail to remember to put his card in the machine. I find his account of putting it into the machine and then at the end of the shift seeking to upload the data in the office to be credible and persuasive. The only other evidence from anyone present is from Mr Robson which, whilst I accept brief and undetailed hearsay, states that he saw the Claimant remove the card at the end of his shift, which indicates that the card had been put into the machine the first place. Whilst he did not specify the date that this occurred, I note that 19th March 2021 is the only date in which there is said to have been a tachograph infringement and so it is unclear why his email would be in relation to any other date. Further, I accept as persuasive the unchallenged evidence of the Claimant that he only worked with Mr Robson on one occasion, which was on the 19th March 2021. Upon the basis of the evidence before them, the Respondent could not have reasonably concluded that the Claimant had failed to insert his card into the machine at all.

[43]Mr Miller, during the Tribunal hearing, sought to pray in aid that the Claimant would have known that the card was not in place correctly as the machine would have beeped. This issue appears not to have been explored or investigated by the Respondent during the disciplinary proceedings notwithstanding that the Claimant’s representative raised the matter. Therefore, the Respondent could not reasonably conclude that the Claimant ignored an audible warning beep.

[44]Given the lack of scrutiny during the disciplinary process as to whether there would have been a beeping to warn the Claimant that the card was not inserted properly, I am not satisfied that there was the presence of such beeping. I note that Mr Miller was inconsistent as to whether it was an alarm or a beep. He did not know the frequency of the beep. There is no direct evidence that the beep function was turned on or working or whether it was set to be audible over the sound of the engine. There was no witness statement from Mr Robson to state that there was beeping. I found the Claimant to be truthful and honest where he said that he heard no such warning.

[45]It is also argued that the infringement was particularly serious as the Claimant drove all day without the card properly in the machine. However, there is little explanation and no guidance as to why that is seen as more serious than any other ‘major infringement’ or ‘major incident’. I note that the definitions of major infringement include driving without a functional card. That is what the Claimant did, his card was not functioning as he had not inserted it correctly into the machine. There is nothing in the policy to state that an infringement is particularly serious if it is for a longer period of driving, or that a ‘major infringement’ or ‘major incident’ is limited to a specific time period.

[46]As such, I find that it was unreasonable to depart from the Respondent’s own policy. The policy should have been adhered to and, if it was, the Claimant would not have been subjected to disciplinary action but instead would have been subject to training. It was outside the range of reasonable responses for the Respondent to depart from its own policy.

[47]Given that it was not reasonable embark upon a disciplinary process, it follows that any disciplinary warning was therefore unreasonable and so the dismissal itself was outside of the range of reasonable responses. Had the Respondent adhered it its own policy, then the Claimant would not have faced any disciplinary action. He would instead have been offered retraining in line with the policy.

Remedy

[48]For those reasons it is not appropriate to make any Polkey reduction to any compensatory award. Has the Respondent followed its own procedure and acted fairly, then dismissal would not have occurred as the Claimant would no9ty have faced disciplinary action at all.

[49]It has not been argued that the Claimant failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. He sought to appeal the dismissal in the appropriate way. As such, there shall be no reduction of the compensatory award.

[50]I do, however, find that the Respondent unreasonably failed to comply with the ACAS Code, in that it failed to undertake a reasonable investigation for the reasons outlined above. However, I find that these failures were due to lack of judgment rather than malicious. I note that a robust procedure was otherwise undertaken. As such, I increase the award by 10%.

[51]I then consider whether there should be any reduction in the basic and compensatory awards for blameworthy and culpable conduct on behalf of the Claimant. I have found as a fact, as outlined above, that he did place the tachograph card into the tachograph machine but not properly. I am satisfied that he was not aware of the error or that there was any warning. As such, it was an inadvertent mistake. However, as a driver of his experience, he should have ensured that the card was placed securely into the machine and did not appear loose or otherwise improperly placed. I have found as a fact that he did not take steps to ensure that the card was properly inserted and functional before going about his day. Such a failure from a man of his experience crosses the line into blameworthiness. It is therefore just and equitable to reduce the basic award by 10% accordingly. Further, as the conduct caused the dismissal, it is just and equitable also to reduce the compensatory award by 10%.

[52]Mr Dunn invited me to adjourn for remedy to be determined on another occasion and stated that this was due to the fact that the Claimant had not provided a schedule of loss. I noted that, in light of the Claimant being unrepresented, a schedule of loss was unlikely to be forthcoming and that there was sufficient time to determine remedy. I had in mind the overriding objective to deal with matters proportionately and without undue delay and conclude that it was fair to proceed to remedy without delay.

[53]The Claimant gave evidence and stated that he had obtained agency work soon after his dismissal, starting on 2nd June 2021. He stated that his income is comparable to that from the Respondent and that, additionally, he had received 12 weeks’ notice pay from the Claimant. He confirmed that he had not therefore suffered financial loss as a consequence of his dismissal.

[54]The Claimant accepted Mr Dunn’s calculations that his average gross weekly wage from the Responded was £507.36. He was 51 years old and had worked 18 full years at the date of his dismissal. He was therefore entitled to 23 weeks’ pay as a basic award, minus 10% on account of his own culpable conduct: £507.36 x 23 = £11,669.28 Reduced by 10% on account of the Claimant’s conduct = £10,502.35

[55]As the Claimant claimed no financial loss, the only compensatory award was £500 for loss of statutory rights, which I am satisfied reflects his lengthy service with the Respondent. He will need to work now for another employer for two years to recover his unfair dismissal protection and for 12 years to recover his statutory notice rights. These are valuable statutory rights.

[56]To that sum should be added a 10% uplift to account for the Respondent’s unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedure. There then shall be a 10% deduction on account of the Claimant’s own conduct: £500 plus 10% ACAS uplift - £550 £550 minus 10% on account of the Claimant’s conduct = £495

[57]The Respondent shall therefore pay the basic and compensatory awards to the claimant in the aggregate sum of £10,997.35 by 4 February 2022: £10,502.35 plus £495 = £10,997.35