Mr P ChokskiClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge ElliottDate 21 March 2019
JUDGMENT
ON REMITTED HEARING The Judgment of the Tribunal is that the claimant was unfairly dismissed.
REASONS
The relevant law
[1]This decision was given orally on 11 December 2018. The respondent requested written reasons.[2]At a hearing on 13, 14 and 20 November 2014 before Employment Judge Professor Neal, the claim for unfair dismissal failed and was dismissed. Written reasons were sent to the parties on 6 March 2015.[3]There was an appeal to the EAT which was heard by Hand J on 21 January 2016. The sealed copy of the judgement was sent to the parties on 21 March 2016. The decision of the EAT was that this case should be remitted to this tribunal.[4]On 24 June 2016 case management orders were made by Employment Judge Professor Neal. It was agreed that the question for consideration by the tribunal arose out of an amended additional ground of appeal raised orally at the EAT. The remitted hearing took place on 15 September 2016 before Professor Neal. Once again, the claim for unfair dismissal failed.[5]There was a further appeal to the EAT, heard by Laing J on 20 February 2018. The decision was that the case should be remitted to a fresh tribunal. The sealed copy of the decision was sent to the parties on 20 April 2018.[6]On 19 June 2018 a case management hearing took place before Employment Judge T Lewis. It was agreed at that hearing that in relation to liability there be no fresh oral evidence but that there may need to be evidence on remedy in relation to mitigation and pension loss. It does not appear from Judge Lewis’s Order that there was any application by the respondent to seek to adduce more evidence for this tribunal’s consideration.
The issues
[7]It was agreed that in relation to liability the tribunal would rely on the fact findings in the original ET decision, as clarified by the EAT. Directions were given as to the contents of the trial bundle. Documents[8]I had an agreed bundle of documents from the respondent which contained the decisions of the EAT and of Employment Judge Professor Neal and a large quantity of remedy documents. There was a further document introduced by the claimant at this hearing, to which there was a no objection from the respondent. It went to remedy. The bundle ran to just over 500 pages.[9]There was an agreed bundle of authorities prepared by the claimant, with 11 cases.[10]I had written submissions from both parties to which they spoke and which are not replicated here. All submissions and authorities referred to were fully considered even if not expressly referred to below.
The issues
[11]The issues with this hearing were identified at the hearing on 19 June 2018 by Employment
Judge Lewis, as follows:
[12]Was the dismissal effected by Mr O’Donovan or Mr Miranda? At the start of this hearing the parties agreed that the dismissal was effected by Mr O’Donovan but they had further submissions to make on the matter.[13]If by the latter, whether the appeal process allowed for a different and graver sanction to be imposed without notice having been given to the claimant that he was at risk of imposition of a more severe sanction?[14]Whether in all the circumstances including further consideration of the Royal Mail Code of Conduct, the ACAS Code and further evidence limited to these issues, the dismissal was fair in accordance with section 98(4) ERA; and, if not,[15]To consider, if appropriate section 122(2) and section 123(6) ERA (contribution);[16]If appropriate, to consider the issue of remedy. A short summary of the existing findings of fact[17]As I am required to do, I adopt the findings of fact made by Employment Judge Professor Neal in the written reasons sent to the parties on 6 March 2015.[18]For the purposes of context for this decision, I adopt summary of the facts from the decision of Laing J and set out from paragraph 6 of her reasons[19]The claimant was an Operational Support Manager. He was dismissed for gross misconduct after a career with the respondent lasting 27 years. On 10 October 2013, 28 files containing obscene material were found in a folder in the claimant’s cloud storage account which was provided by the respondent for work purposes. The respondent found these files and informed the police. The claimant was arrested at work, interviewed by the police, charged and bailed. It was well-known at his workplace that this had happened.[20]Access to cloud accounts is protected by a personal password. An employee can get into his cloud account at work or remotely. Anyone who tried to log onto an account is warned that access must be authorised. The warning was described as graphic. Use of the respondent’s computer system is governed by a Code of Conduct which forbids the sharing of personal passwords and obtaining access to pornographic material, storing or publishing it.[21]The claimant accepted that he knew about those rules. His case was that he did not know about the 28 files in his cloud storage account until he was arrested. He said he had not put them there and did not know how they got there. His case was that there was a widespread practice of password sharing among employees, which was essential to facilitate efficient working.[22]Mr O’Donovan was the head of the claimant’s department but not his line manager. He was asked to investigate and if necessary carry out the disciplinary procedure. Mr O’Donovan suspended the claimant and interviewed him. The claimant said he did not know the files were in his cloud storage account and did not know how they got there.[23]Mr O’Donovan had a technical report which claimant did not see until a late stage in the disciplinary process. The ET (Employment Judge Professor Neal’s first decision) did not think that the report helped very much. Mr O’Donovan had formed the mistaken impression that the report told him about computer transactions linked with the claimant. The respondent accepted at the ET hearing that all the report showed was that the files were present in the claimant’s cloud storage account.[24]Mr O’Donovan formed the view early on that the claimant had breached the rules by sharing his password with others. The claimant gave the names of eight such employees or former employees whom he said would confirm that this was a widespread practice. Mr O’Donovan contacted six of them. He did not try to contact the two former employees, one of whom, the claimant said had a grudge against him.[25]Hand J summarised Mr O’Donovan’s interviews with the various employees in the first decision of the EAT. Mr O’Donovan decided that the claimant had shared his password (he had admitted as much), and that he had been responsible for downloading pornographic material into his cloud account. I saw Mr O’Donovan’s dismissal letter at page 110 this bundle and his rationale for his decision from pages 111-112. He considered that password sharing was a serious offence, but would not on its own justify dismissal: “Of itself, I would consider this a serious matter, one which could be dealt with using action short of dismissal.” (bundle page 111 of the bundle).[26]The claimant appealed to Mr Miranda. Mr Miranda conducted a re-hearing but he did not carry out any fresh investigation. Mr Miranda’s view was that if he had found that the claimant had shared his password, that would justify dismissal. Mr Miranda took a dim view of the claimant’s credibility. He said that there had never been a practice of sharing login details. Managers, especially at the claimant’s level, are absolutely clear on the consequences of sharing login details.[27]Following the claimant’s appeal against the ET’s finding that there had been a fair dismissal, the EAT’s Order recited that Mr O’Donovan had decided that the password allegation on its own would not have justified dismissal and that Mr Miranda thought that it did justify dismissal on its own. The Order required the ET to decide who dismissed the claimant and if it was Mr Miranda, whether the appeal process permitted a harsher sanction to be imposed without notice to the claimant.[28]Laing J held (paragraph 53 of her decision) that decision of Mr O’Donovan, that he considered password sharing as not being sufficiently serious as to invite a sanction of dismissal, could not be revisited by the ET or the EAT. I have no authority to revisit that finding and I do not seek to do so.
The relevant law
[29]Section 98(4) of the Employment Rights Act 1996 provides: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends 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(b) shall be determined in accordance with equity and the substantial merits of the case ...”
The relevant law
[30]In Taylor v OCS Group Ltd 2006 EWCA Civ 702, the Court of Appeal said that the fairness of procedures should be considered as a whole.[31]In Smith v City of Glasgow District Council 1987 IRLR 326 the House of Lords held that in resolving the question of what is the reason or principal reason for dismissal, if there is more than one, the question of the principal reason is important to the issue of whether the respondent treated it as a sufficient reason for dismissal. The allegation relied upon must have formed at the very least an important part of the reason for dismissal.[32]In Barchester Healthcare v Tayeh EAT/0281/11, citing Smith, at paragraphs 35 and 36, the EAT found (Richardson J) that: “If the charges were cumulative, in the sense that all of them together formed the principal reason for dismissal, it would be fatal to the fairness of the dismissal if any significant charge were found to have been taken into account without reasonable grounds: see Smith v City of Glasgow District Council 1987 IRLR 326……. “If, however, each charge stood on its own, for example independent instances of gross misconduct such that the employer would have dismissed for any of them without the other, then they would require separate consideration in determining whether it was reasonable to dismiss.”[33]There are four questions to be considered in respect of contributory fault Steen v ASP Packaging Ltd 2014 ICR 56, EAT (Langstaff P):(a) The tribunal must identify the conduct which is said to give rise to the contributory fault;(b) Having identified it, the tribunal must ask whether that conduct is blameworthy;(c) The tribunal must ask for the purposes of section 123(6) ERA whether it considers that the blameworthy conduct caused or contributed to the dismissal to any extent. If not, there can be no reduction to the compensatory award;(d) To what extent the award should be reduced and to what extent it is just and equitable to reduce it.[34]The contributory conduct does not have to be the principal reason for dismissal as long as it was one of the reasons - see Robert Whiting Designs Ltd v Lamb 1978 ICR 89. This point is also illustrated by Carmelli Bakeries Ltd v Benali 2013 EAT 0616/12 (see judgment paragraph 44). Findings and conclusions[35]On the question before me, as to was the dismissal effected by Mr O’Donovan or Mr Miranda, this gives little difficulty. EJ Professor Neal’s decision was that Mr O’Donovan made the decision to dismiss. The parties informed me at the outset of this hearing that they agreed that the dismissal was effected by Mr O’Donovan.[36]At paragraph 50 of its submissions the respondent said that Mr O’Donovan, on behalf of his employer, dismissed and Mr Miranda, on behalf of his employer, upheld the dismissal. The submission for the respondent was that it was the “employer’s” decision and both officers made decisions that resulted in dismissal.[37]Whilst it is correct that it is the employer’s decision to dismiss, the respondent is a corporate body which acts by its officers. It is the decision of the particular officer which is for consideration in an unfair dismissal claim. It is necessary to look at the decision made by the relevant decision maker. The decision maker and dismissing officer was Mr O’Donovan.[38]I find at this remitted hearing that the dismissal was effected by Mr O’Donovan.[39]This might then have rendered otiose the second question which was, if by the latter (ie Mr Miranda), whether the appeal process allowed for a different and graver sanction to be imposed, without notice having been given to the claimant that he was at risk of imposition of a more severe sanction? Nevertheless, I have gone on to consider the second half of the question in relation to the appeal, namely whether the appeal process allowed for a different and graver sanction to be imposed without notice to the claimant that he was at risk of a more severe sanction.[40]At paragraph 53 of its submissions, the respondent said that it was uncontroversial that the respondent’s Conduct Policy allows the appeal to impose a lesser, but not a greater penalty. This is consistent on my finding with the paragraph in the Conduct Policy at page 155 of the bundle which says: The appeal is a hearing at which the appropriate appeal manager will rehear the case in its entirety. It is the employee’s opportunity to state his/her case why the penalty should be set aside or reduced. The result could be revoking or confirming the decision, or reducing the penalty.[41]There is no question under the Conduct Policy of the sanction being more severe. On top of this, I have considered the non-statutory ACAS Guide (which provides good practice advice) and states, at page 236 of the bundle: “An appeal must never be used as an opportunity to punish the employee for appealing the original decision, and it should not result in any increase in penalty as this may deter individuals from appealing”.[42]The decision of the Court of Appeal in Macmillan v Airedale NHS Foundation Trust 2014 IRLR 803 makes observations that the general understanding among both employers and employees is that an employee’s right to appeal against a disciplinary sanction is conferred for his or her protection, so that its exercise will not leave them worse off; and that view is strongly reinforced by the terms of the ACAS Guide. If an employer wishes to have the right under its disciplinary procedures to increase the sanction on appeal, the Court of Appeal’s view was that it must be expressly provided for (per Underhill LJ at paragraph 71).[43]I accept that in Macmillan there was a contractual provision that meant that her sanction could not be increased on appeal, but the Court’s observations nevertheless hold good in relation to the case before me. The respondent sought to distinguish Macmillan because her case the disciplinary sanction of a final written warning was increased to dismissal.[44]Mr Peacock for the respondent submitted that the claimant in this case was not worse off because of his appeal, because no more severe sanction was imposed. The claimant was dismissed by Mr O’Donovan and remained dismissed following his appeal to Mr Miranda. Thus, on the respondent’s submission there was no graver or more severe sanction. I do not accept this submission. This goes back to the issue of the two charges, images and password sharing and the reason for dismissal.[45]Hand J at his paragraph 45 commented upon this: “What causes me pause for thought, however, is that Mr O’Donovan would not have even on the factual material that he had considered password sharing to be so serious as to warrant dismissal. Can this be cured by Mr Miranda? One only needs to state that proposition to see that it is very odd. If there had been no appeal in this case, the Employment Tribunal, as it seems to me, would have been, without Mr Miranda’s appeal hearing, in the position of having to hold the dismissal relating to the storage of the files to be unfair on the grounds that it did and would have been left with the circumstance that Mr O’Donovan would not have dismissed the Appellant. In those circumstances, the dismissal would simply have been unfair”.[46]As I have said above, I cannot and do not revisit the findings as to the rationale for Mr O’Donovan’s decision that he did not consider password sharing sufficiently serious to warrant dismissal. Appealing to Mr Miranda meant that the claimant was seeking to overturn the decision to dismiss him on the images charge. Password sharing did not, on Mr O’Donovan’s decision, merit dismissal. Thus, by appealing, he found himself worse off because Mr Miranda took a different and more stringent approach to password sharing.[47]As submitted for the claimant, which I accept, the disciplinary charge of downloading images falls away. The original tribunal found as a fact that there was not an appropriate or sufficient investigation into the issue of how the files came to be in the claimant’s cloud account. The finding of fact (paragraph 32) was that there was very little about the technical nature of the files and their history which could have told anybody about how those files came to find their way into the cloud account to which the claimant had password access. The finding was that had the only basis for dismissing the claimant been the downloading issue, the tribunal would have found that this was an unfair dismissal and “that would have been the end of the matter” (paragraph 33).[48]The downloading issue therefore falls away on the finding that dismissal for this reason amounts to an unfair dismissal. We are left with the password sharing issue. I accept that Taylor v OCS provides that the process should be looked at as a whole, but this is more fundamental than process, it goes to the reason for dismissal. What Mr Miranda sought to do was to change the reason for dismissal because of his more stringent view of password sharing. As I have said above, I cannot and do not revisit Mr O’Donovan’s reason for dismissal. He would not have dismissed for password sharing. I find that it was not open to Mr Miranda to impose a more severe penalty on password sharing.[49]The third question for my consideration was whether in all the circumstances, including further consideration of the Royal Mail Code of Conduct, the ACAS Code and further evidence limited to these issues, the dismissal was fair in accordance with section 98(4) ERA.[50]On my finding the respondent is fixed with Mr O’Donovan’s decision. As held by the EAT in Barchester Healthcare (above) if each charge stands on its own, they require separate consideration in determining whether it was reasonable to dismiss. The downloading issue amounted on the tribunal’s original findings to an unfair dismissal. It did not pass the section 98(4) test. EJ Professor Neal found that there was little or no relevant evidence provided to the tribunal on the basis of which to properly form any technical view as to what may have happened (paragraph 11(24)). It was agreed that in relation to liability the tribunal would rely on the fact findings in the original ET decision, as clarified by the EAT.[51]The password sharing stands on its own and Mr O’Donovan would not have dismissed for this. As commented upon by Laing J in her decision at paragraph 49, this reason would not have passed the section 98(4) test on its own. I concur with this reasoning and find that Mr Miranda’s increased penalty of dismissal for password sharing does not pass the section 98(4) test.[52]As a result of this, I find that the claimant’s dismissal for password sharing was unfair.[53]This brings into play the fourth issue which is given the finding that the dismissal was unfair, should there be a reduction in compensation for contributory fault?[54]The respondent made submissions as to why they said that contributory fault was engaged. The factors which must be present for a reduction for contributory fault were correctly set out at paragraph 75 of the respondent’s submissions:• The claimant’s conduct must be culpable or blameworthy• It must have actually caused or contributed to the dismissal• The reduction must be just and equitable[55]The second factor is absent. The claimant’s conduct on password sharing did not, on Mr O’Donovan’s rationale, actually cause or contribute to the dismissal. He was clear that although it was a serious matter, it was one which could be dealt with using action short of dismissal. I cannot and do not find that the claimant contributed to his dismissal by his conduct in password sharing. It had no causative impact on dismissal.[56]To the extent that the respondent submits that I am bound by EJ Professor Neal’s comments at the end of his first decision that even if he had found the claimant to be unfairly dismissed on password sharing, he would have made a significant reduction for contributory fault – even to the point of 100% - I find I am not bound by this. It is a remitted hearing where the issue of contributory fault is placed before me for consideration. I have found that the password sharing issue did not cause or contribute to the claimant’s dismissal. The dismissing officer’s view was that this was a matter which could be dealt with using action short of dismissal (dismissal rationale page 111).[57]I therefore find that there should be no reduction for contributory fault. Remedy issues[58]In the light of the findings above, remedy became applicable. The claimant seeks reinstatement or re-engagement. Under section 112 ERA where a tribunal finds the complaint of unfair dismissal to be well-founded it shall explain to the claimant what orders can be made under section 113 – namely reinstatement or re-engagement. The claimant is represented by counsel who had plainly advised him in relation to this.[59]I had a witness statement from the claimant, which was not given in evidence at this hearing. The claimant said that in his view the respondent could easily find him a role on the same terms as he was on at the date of dismissal. He said he has tried to find suitable alternative employment but has been unable to find a job that matched his previous role.[60]He has found work and has been employed by Metroline since 12 June 2017.[61]The Schedule of Loss produced a sum of over half a million pounds, capped at £43,692 (page 253).[62]Despite remedy clearly being a matter which the tribunal may consider at this hearing, the respondent produced no witness evidence to assist the tribunal on the issue.[63]In exercising the discretion to order reinstatement re-engagement, the tribunal must take into account the matters set out in section 116 ERA. The factors are:(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.(3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.[64]Practicability is probably the most important factor to take into account when considering whether or not make an order for re-employment and it is a question of fact for the tribunal. I had no evidence before me from the respondent on the issue of practicability and in those circumstances I could not see how I could give effect to the overriding objective, to deal with this matter fairly and justly, without evidence from a respondent that contests the application for reinstatement or re-engagement. I simply could not take this on the respondent’s solicitor’s “say so”. It goes without saying that this is not evidence upon which to base a finding.[65]I also took account of Rule 76(3) which says where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if:(a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and(b) the postponement of that hearing has been caused by the respondent’s failure, without special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed, or of comparable or suitable employment. No special reasons were put forward.[66]I drew to the parties’ attention that Rule 76(3) says “shall” order the respondent to pay costs, and not “may”.[67]As a result of the above matters I did not go on to determine remedy at this hearing. A case management hearing was held for remedy and dates were fixed.[68]The respondent confirmed at this hearing that it agreed that it is responsible for the statutory maximum amount of compensation, if no order is made by the tribunal for reinstatement or reengagement. There shall be no order for reengagement.[2]The respondent shall pay to the claimant the sum of £53,142 for unfair dismissal.[3]The respondent shall pay the claimant’s costs in the sum of £9,360.[1]This decision was delivered orally on 21 March 2019 and the Judgment was sent to the parties on 22 March 2019. By a letter dated 22 March 2019 the claimant requested written reasons.[2]By a judgment delivered orally on 11 December 2018 and with reasons claim for unfair dismissal.[3]This hearing was to deal with remedy and the costs of the postponement on 11 December 2018 at a remitted hearing. Documents[4]I had three bundles for the remedy hearing, a core bundle which included the statements and previous judgments and some of the job roles in which the claimant is interested. Bundle 2 was the original hearing bundle from 2015. Bundle 3 was the remedy bundle before the tribunal in December 2018. There was around 850 pages of documents. I also had a schedule of costs from the claimant.[5]The tribunal heard from the claimant. From the respondent the tribunal heard from Mr Ricky McAulay, the Service Delivery Director for the South Region and from Mr Joe Miranda, an Independent Casework Manager within HR services for the South Region. He was also the appeals officer in connection with the claimant’s dismissal.[6]I had a written submission from the claimant with some authorities. I had oral submissions only from the respondent. All submissions and authorities referred to were fully considered even if not expressly referred to below. The issues[7]The primary issue for this hearing was whether the tribunal should order reinstatement or reengagement of the claimant. At the outset counsel for the claimant said that the claimant no longer sought reinstatement as he accepted that his original role was discontinued in November 2014. The issue was therefore whether the tribunal should order reengagement.[8]In the event that this was not ordered, the respondent accepted that it was liable to the claimant for the statutory maximum amount of compensation.[9]The Schedule of Loss produced a sum of over half a million pounds, capped at £43,692 (bundle page 253).[10]There was a finding at the last hearing that there should be no reduction for contributory fault. This is therefore not in issue.[11]It was also an issue for this hearing as to the amount of costs payable by the respondent under Rule 76(3) being the costs incurred by the adjournment of this remedy hearing on 11 December 2018. The reasons for this are set out in the Case Management Order of that date.[12]Essentially there was no evidence from the respondent on 11 December 2018 as to what had happened to the claimant’s job since his dismissal, or what other vacancies might exist into which he might be reemployed and no evidence as to what the respondent had to say on practicability. I made Orders for disclosure of documents and witness evidence on these issues. Findings on remedy[13]The claimant said that in his view the respondent could easily find him a role on the same terms as he was on at the date of dismissal. He said that after his dismissal he tried to find suitable alternative employment but was unable to find a job that matched his previous role. He started a new job on 12 June 2017 with Metroline as a bus driver.[14]The respondent’s witnesses said that the claimant’s view of Royal Mail as a business has changed substantially since he was dismissed in on 19 March 2014 because of privatisation five months prior to that in October 2013. I find on a balance of probabilities that because of privatisation, the respondent’s evidence is to be accepted and I find that the business has gone through radical change in the last five and a half years. It is a more streamlined commercial organisation. Roles have been reduced and rationalised. I accept and find that post-privatisation the respondent is a different organisation to the one the claimant worked in some five years ago. This does not mean that it does not have vacancies arising throughout its extensive workforce. Jobs sought by the claimant for reengagement[15]The respondent is an organisation of about 130,000 employees. The workforce in the South Region, managed by Mr McAulay, who gave evidence to the tribunal, is about 37,000.[16]There were seven job roles in which the claimant expressed interest. They were numbered (a) to (g) and are set out below. Because of his caring responsibilities the claimant ideally requires an early shift, from 6am to 2pm but is prepared to be flexible on occasions when needed as he had been during his employment with the respondent. The preference for the claimant is in the order as listed below.a. Production Demand Manager at Greenford. The claimant accepted during evidence that this was a role filled by another person some years ago. I find it is not an available vacancy.b. Early Shift Manager at EL1 grade, based at Greenford. This is a grade above the role that the claimant held. The relevant email was at page 82 from Ms Julie Forde in HR who said it was grade EL1. The claimant did this role briefly on a temporary basis but did not secure the substantive role at this grade (page 82). It was submitted that he could be reengaged in this role on his MS2 grade. I reject that submission for three reasons. Firstly he was not previously successful in gaining the substantive role which indicates a lack of suitability for that role. Secondly it is a higher graded role. Thirdly I consider it most unattractive and undesirable to order reengagement in a role at EL1 grade on MS2 terms. The claimant submitted that notwithstanding the Rank Xerox case (below) there is no obstacle to appointment in that the tribunal can set out the terms of the reengagement. I find that it would create an obvious equal pay problem if there was an opposite sex comparator and this sort of disparity ought not, on my view, to be created by tribunal Orders even accepting that the tribunal has some flexibility in terms of what it can order. For these reasons I consider that it is not a suitable role for an order for reengagement and in any event I consider that the Rank Xerox case prohibits this.c. Projects Manager also known as Deployment Leads or Deployment Managers at grade MS2 and MS4, respectively, at locations across the UK. I saw an email in the bundle from a Recruitment Manager in HR (bundle page 74) which said that the business case for these roles had been rejected and the respondent was no longer recruiting to these roles. I find that these are not vacancies available to the claimant. The claimant identified this role, it was not identified by the respondent in their search or through their disclosure as it should have been. I saw an email from the respondent dated 6 March 2019 (page 71) stating that the project was on hold, the roles were no longer confirmed and the expected start date, once approved was October 2019. The email stressed that it was still to be confirmed. By 13 March 2019 in an email from a recruitment manager to the claimant (page 74) he was told in a detailed email that the business case had been rejected. I find that there is no available vacancy.d. Traffic Office Manager at ML3/4 grade (being one or two grades below the claimant’s previous role), based in the Hanger Lane area close to the claimant’s home. The respondent said that an original role in the Heathrow area had since been filled (p.70AA-71). However, a further Traffic Office Manager role in the Hanger Lane area was advertised two days before this hearing, on 18 March 2019, working an early shift and commencing on 8 April 2019 (page 110). The respondent said it is a specialist role requiring experience of managing a transport function and the respondent said the claimant does not have that experience. The claimant was not doing this in his pre-dismissal role. He has had some limited relevant experience in 2008 and 2012 but not aligned to this particular role in leading a transport and distribution function. The claimant is currently a bus driver and said this gave him relevant experience. I find that being a bus driver this gives him some relevant knowledge of transport regulatory issues but he is not managing a transport and distribution function. I agree with the respondent and find that this is not a suitable vacancy for an order for reengagement.e. Operations Manager – this is also at ML4 grade, lower than the claimant’s previous role. It is based in north London (pages 104-107). According to the most recent information from the respondent this role is in the process of being recruited to and is available (page 70AAA). The claimant said it fitted his skill set and experience. It is a Cover Manager role. The respondent said that other than 6 months experience in 2012 and some brief managerial experience in 2008 the claimant’s past work bore no resemblance to front line service delivery. He was working in a stand-alone technical role as an Automation Performance and Sortplan Manager at middle management level. The claimant set out in his remedy witness statement at paragraph 4 what his job entailed and I find that it was not a service delivery role. He was not an operational manager. This is not a suitable role for an order for reengagement.f. Office Manager / Executive Assistant in the Pension Trustees’ office – the exact grade was unknown but as it was around the claimant’s salary, Mr Miranda thought it was likely to be equivalent. I find on a balance of probabilities that the grade is equivalent. The claimant’s evidence was that he had spent four to five months in 2010 working as an executive assistant and PA to a Senior Plant Manager and a Late Shift Manager where he did some of the relevant tasks, including keeping diaries, organising meetings and taking minutes. The roles of Senior Plant Manager and Late Shift Manager are below Executive Level and this is a role working with those at Executive Level. The job description was at page 112-113. It required “extensive experience” supporting senior executives and it required working as a team with sensitive information. I find that 4 – 5 months experience of a lesser role nine years ago is not “extensive experience” as envisaged by that job description and it is also not extensive experience supporting senior executives. The claimant’s experience was supporting those below executive level. The respondent also submitted that there was a concern about the claimant working with sensitive information. I find that this was a legitimate concern given the admission the claimant made about his password and storage of personal material on his work account. I find that this is not a suitable vacancy for an order for reengagement.g. The claimant’s case was that as a catch-all he could be employed via the respondent’s redeployment pool for employees displaced from their roles under the respondent’s Managing the Surplus Framework known as MTSF. It was not in dispute that it acted to preserve an employee’s pay, grade and conditions whilst they wents through a process that could lead to one of three outcome: voluntary redundancy, compulsory redundancy or redeployment. The respondent had a profit warning in September 2018 and has to make a head count reduction of 20-25% to improve its financial position. Based on Mr McAulay’s evidence I find that MTSF does not represent a role for anyone. It is a holding position pending one of the three outcomes mentioned above. It is does not represent a vacant role into which reengagement can or should be ordered. It is a temporary holding position for those who are at risk of redundancy. Practicability The trust and confidence issue[17]If I am wrong in relation to any of the above vacancies I go on to deal with the issues of practicability. The main issue on practicability is the respondent’s case that the trust and confidence in the claimant has broken down irreparably. This is a material consideration on the question of practicability. Mr Miranda gave evidence at this hearing and he was also the appeal officer in relation to the claimant’s dismissal. He saw the offending material on the claimant’s password protected NetApp account. It left a lasting impression on him and the police were involved. Mr Miranda’s evidence was that if the claimant was in any way responsible for that material being on his Royal Mail account, then he was not suitable for employment in their business.[18]It is not in dispute that the offending material was of extreme sexualised nature which the claimant agreed was “at the extreme end of appalling” and in the case of one image, amounted to a criminal offence. The claimant accepted the Technical Report (original hearing bundle page 72) said that the images were there as a result of deliberate activity on his account. The claimant accepted in evidence that the respondent was entitled to have serious regard to this.[19]At the time of the appeal and as at the date of this remedy hearing, Mr Miranda believes the claimant to have been responsible for that material being there. He says that the offending material could only have been placed there with the claimant’s authorised user identity and password. Mr Miranda said that the claimant knew he had to protect his password to maintain the integrity of the respondent’s business information security.[20]Mr Miranda said that to use the claimant’s password, another person would need to know his user name and password, store the material there and leave it there whilst risking their own employment and possible criminal sanctions. He considers that it was the claimant who was responsible.[21]It is not in dispute that the respondent has not canvassed the “views on the ground” of the employees who might have to work with the claimant if he were reemployed. This would be difficult for the respondent, not knowing where the claimant might be placed. Seven potential job roles were identified. The claimant’s position was that as with the Oasis case, there were unlikely to be difficulties with those with whom he would have a regular working relationship.[22]Mr McAulay’s evidence was that given the nature of the issue, it would be a “highly risk thing to do” to engage in conversations with the claimant’s peers whom he considered would have mixed views on the matter. I agree and find that it was not incumbent on the respondent to go canvassing the views of employees in different work locations and explain to them the issues with the claimant’s case, given the nature of those issues. I accepted Mr McAulay’s evidence that the case had been quite high profile with the involvement of the police and an arrest at work.[23]The factual scenario in the Oasis case and the opposition to reengagement was on the basis that the claimant had engaged in aggressive correspondence with some senior members of staff which was regarded as harassing and he had made complaints about the respondent to regulatory authorities. The EAT upheld the tribunal’s reengagement order. That claimant would be working at a different school and not with the individuals with whom he had engaged in the aggressive correspondence. The EAT found that the tribunal’s view of reengagement was rather more favourable than generally found, but it did not amount to an error of law. The EAT said that no general conclusion should be drawn from their decision about the readiness with which reinstatement or reengagement orders should be made. It remains a question of fact.[24]Employment Judge Professor Neal found (paragraph 11(26)) that the presence of the offending material on the claimant’s account was likely to be attributable to deliberate activity on the account and the account was password protected in the name of the claimant. That finding stands.[25]He also found that warnings with regard to passwords were given on a regular basis to all users when they logged on and those warnings spelt out in graphic detail the seriousness of not complying with the acceptable use policy and indicated the sanction that would follow. Judge Neal found that the claimant accepted he was given the warnings. He found (paragraph 11(31)) that the claimant had “effectively confessed his misconduct”.[26]The Technical Report does not show that the claimant downloaded the offending material but neither does it exonerate him. Mr Miranda considered that although Mr O’Donovan would not have dismissed for password sharing alone, he, Mr Miranda, considered it gross misconduct.[27]In cross-examination the claimant revisited with the respondent’s witnesses the issue regarding an alleged “custom and practice” of password sharing. I decline to revisit this issue when there are findings of fact from Judge Neal on the matter having heard from the relevant witnesses (judgment paragraph 4). He found (paragraph 11(31) that the claimant effectively confessed his misconduct.[28]The claimant also admitted that he used his work account for backup and downloading of his personal material which he should not have done.[29]Mr McAulay’s oral evidence to the tribunal on the trust and confidence issue was: “I have significant concerns, about the findings in the case, so whilst the Technical Report did not identify that the claimant downloaded these images, neither did it exonerate him and there is real concern, either through password sharing which is a significant breach and loss of confidence, there is also the concern that those images were downloaded so one way or another he is responsible for those. One was of a criminal nature”.
The relevant law
[30]Under section 112 ERA where a tribunal finds the complaint of unfair dismissal to be well-founded it shall explain to the claimant what orders can be made under section 113 – namely reinstatement or reengagement. The claimant has been advised as to this.[31]Reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed. All his contractual rights on matters such as pay, holidays, pensions and seniority must be restored to him, including any improvement in terms and conditions.[32]Reengagement is a more flexible remedy. It can be to a different job provided that job is comparable to that from which he was dismissed, or other suitable employment. The Order must specify(i) the identity of the employer;(ii) the nature of the employment;(iii) the remuneration;(iv) the amount payable in respect of any benefit which the claimant might reasonably have had but for the dismissal, including arrears of pay for the period between dismissal and re-engagement;(v) any rights and privileges, including seniority and pension rights to be restored to the claimant; and(vi) the date by which the order must be complied with.[33]The tribunal cannot order reengagement on more favourable terms - Rank Xerox (UK) Ltd v Stryczek 1995 IRLR 568.[34]In exercising the discretion to order reinstatement re-engagement, the tribunal must take into account the matters set out in section 116 ERA. The factors are:(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account— (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.(3) In so doing the tribunal shall take into account— (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.[35]Practicability is probably the most important factor to take into account when considering whether or not make an order for re-employment and it is a question of fact for the tribunal.[36]The initial decision on practicability is provisional. The EAT in Timex Corp v Thomson 1981 IRLR 522 said that the stage when the order to re- engage is being made, it is not necessary for the tribunal, looking at future possible events, to make a definite finding that the order for reengagement is practicable. They must have regard to the question of practicability and if they are satisfied that it is unlikely to be effective, they will no doubt not make an order. The only strict requirement is that they should have regard to practicability. This approach was approved by the Court of Appeal in Port of London Authority v Payne 1994 IRLR 9 who went on to say “The final conclusion as to practicability is made when the employer finds whether he can comply with the order within the period provided for reinstatement or re-engagement. At this second stage the burden of proof rests firmly on the employer.” This approach was approved more recently by the Supreme Court in McBride v Scottish Police Authority 2016 ICR 788 at paragraph 37.[37]Practicability does not mean what is possible. The tribunal has to consider the industrial relations realities of the situation. It means more than merely possible but “capable of being carried into effect with success” - Coleman v Magnet Joinery Ltd 1974 IRLR 343. The employer does not have to create a job for the displaced employee.[38]A breakdown in mutual trust and confidence is material to the issue of practicability. The tribunal must not substitute its own assessment of that issue for that of the employer. The question of trust and confidence has to be tested between the parties to decide whether an order for reengagement is practicable, whether it is capable of being carried into effect with success, and whether it could work. An employer may have reached a conclusion as to the employee's honesty by an impermissible route in its dismissal decision or might have drawn an incorrect inference, but the tribunal still has to ask, as at the date of the remedy hearing, whether it is practicable or just to order this employer to re-engage the employee – see Central and North West London NHS Foundation Trust v Abimbola 2009 All ER (D) 188 (EAT).[39]It is the employer's view of trust and confidence, appropriately tested by the tribunal as to whether it was genuine and founded on a rational basis, that matters, not the tribunal's view – see United Lincolnshire Hospitals NHS Foundations Trust v Farren 2017 ICR 513, EAT, Eady J. The threshold for threshold for determining whether the respondent lacks adequate trust and confidence was set out by the EAT in this case. Any such belief must be genuinely held and have some rational underpinning [40]) and the impact of the respondent’s alleged loss of trust and confidence on the practicability of reengagement must be measured against the likelihood that the relationship could not be repaired at [42]).[40]As stated in section 116 ERA, an order for reinstatement or reengagement is within the tribunal’s discretion taking into account the factors in that section. It is not to be treated as the primary remedy unless it can be shown to be impracticable – see Underhill J (as he then was) in Oasis Community Learning v Wolff EAT/0364/12 (paragraph 33). In Oasis the claimant was a teacher dismissed as a result of allegations regarding his style in dealing with difficult pupils, which was said to have been too confrontational. He made allegations of misconduct against the respondent as an organisation and against members of the HR department. The EAT said that this was not a case where working relationships that would have to continue had been irreparably damaged. They considered it inherently unlikely that any difficulties outside the sphere of those with whom he would have a regular working relationship would be such as to render his reengagement impracticable. In that case the real issue was with two individuals, one who had left and the other, was someone with whom he would not have to deal. The practicability issue is one for a factual assessment. Costs[41]Rule 76(3) of the Employment Tribunal Rules of Procedure 2013 says that where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the tribunal shall order the respondent to pay the costs incurred as a result of the postponement or adjournment if:(a) the claimant has expressed a wish to be reinstated or re-engaged which has been communicated to the respondent not less than 7 days before the hearing; and(b) the postponement of that hearing has been caused by the respondent’s failure, without special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed, or of comparable or suitable employment. No special reasons were put forward at the last hearing and an Order for costs was justified. Findings and conclusions[42]In making my decision on whether to order reengagement I took account of one of the more recent authorities from the EAT, from Eady J in Farren. She said that where an employer was relying on a breakdown in trust and confidence as making re-engagement impracticable, the tribunal had to be satisfied not only that the employer genuinely believed that trust and confidence had broken down but also that its belief in that respect was not irrational; that the issue of trust and confidence had to be tested in order to determine whether a re-engagement order was capable of being successfully carried into effect by the parties.[43]In Farren Eady J took the view that the tribunal had relied on its own assessment of the claimant’s record and professional commitment in concluding that she could be trusted in a different department, whereas it should have asked whether the employer genuinely believed that the claimant had been dishonest, whether that belief was rationally held, and whether the employer had made good its case that confidence could not be repaired. I reminded myself that it was not for me to substitute my view for that of the respondent in this case.[44]This is not a case where the trust and confidence issue goes to a breakdown of relationships between specific individuals. It is not, as in Oasis, a case in which the claimant had sent harassing emails to particular individuals, with whom, upon reengagement he would not have to work. The trust and confidence issue for the respondent was of a different nature. The claimant had admitted to misconduct in the way that he used his password. He was a middle manager. He knew about the warnings. On his own admission he used his work account inappropriately to back up his personal materials. This included photographs, music and other personal files. He should not have done this on any basis. He shared his password in breach of IT security policies that he knew about and his account was severely compromised. It represents a risk to the integrity of the respondent’s IT security. It is a wider concern about trustworthiness and a lack of confidence in the claimant which I find is not irrational and is a genuinely held belief.[45]Mr Miranda’s view was that if the claimant was “in any way responsible” for the offending material being in his account, he would not be considered suitable for reemployment. His account was password protected and access to the account could only be with his user identity and individual password. He knew he was required to protect that information. Mr Miranda heard the appeal in which the claimant did not put forward to him any credible or compelling reason why he needed to share his password other than on one occasion to a member of IT as part of a pilot programme. Mr Miranda did not consider the claimant credible in his explanations and considered him untruthful. Mr Miranda was concerned about the claimant’s practice of storing his personal music, photographs and other personal files on his work account when there was, in his words, “no logical reason for doing so”. I find that Mr Miranda’s belief was not irrational.[46]I find that even if there was a suitable vacancy into which the claimant could be reengaged, it is not practicable to do so and I decline to order this.
The award
[47]The claimant is entitled to compensation at the statutory maximum agreed between the parties at £43,692 for the compensatory award. In addition I award the basic award at £9,450.[48]The claimant sought an uplift of 10% because the ACAS Code said that the an appeal should never be used as an opportunity to punish the employee for appealing the decision. I asked that the parties check that it was the Code or the Guide that said this. I was reminded that it was the Guide and not the Code and this was dealt with at the remitted hearing before me and in my decision at paragraph 41. The claimant shifted the argument to the Code and paragraph 22 “A decision to dismiss should should only be taken by a manager who ahs the authority to do so”. The claimant says that because Mr Miranda “upped” the penalty, he breached paragraph 22. The claimant said paragraph 22 does not say this. It says that the decision to dismiss, made by Mr O’Donovan, had authority.[49]I find that the respondent complied with paragraph 22 and that the dismissing officer had authority to dismiss. There was no breach, let alone an unreasonable failure to follow the Code. I did not agree to apply any uplift to the award. The costs application[50]The decision to award costs was made at the last hearing as the situation fell squarely within Rule 76(3). I had a schedule of costs from the claimant. The hourly rate and grade of fee earner (grade A) was agreed by the respondent. VAT is payable as the claimant is not VAT registered. The schedule of costs produced a grand total of £10,944.[51]Mr Peacock for the respondent took the tribunal through the schedule and identified the items which the respondent considered were too high. The respondent also disputed the amount of counsel’s fee at £4,500. Counsel is 10 years call and this was a case which had been to the EAT and had some complexity. I find that counsel’s fee was proportionate and reasonable and I allow it in full.[52]On the itemised schedule, the I allow attendances on the claimant and attendances on the respondent at 4.2 hours. Attendances on counsel are disallowed in part as this should be taken as being included within the brief fee and I agree the respondent’s position at 2.4 hours for attendances on counsel. This makes a total of 6.6 hours.[53]In the schedule of work done on documents I disallow the following: 1 hour for perusing the claimant’s schedule of loss, half an hour for considering the early shift manager role as this was a very short email, 1 hour for considering the case management order, this was short and the parties had been present and knew its contents in any event and an hour and a half for reading the judgment of the remitted hearing and reasons. For those combined items I allow a total of 1.5 hours. The schedule of work on documents produces 8.4 hours to which is added the 6.6 hours, gives a total of £3,300 at the hourly rate of £220 + counsel’s fee and VAT.[54]The parties agree on the mathematical calculation based on my findings that the award of costs is therefore in the sum of £9,360 to include VAT.