Mr S Lazarou v Retail Motor Industry Federation Ltd: 2201491/2019 and 2203115/2019

EMPLOYMENT TRIBUNALS

Case No 2201491/2019, 2203115/2019

Between

Mr. S LazarouClaimant

Retail Motor Industry Federation LimitedRespondent

Before

Employment Judge B McKenna

In person for claimant

Mr R Wayman (instructed by Counsel) for respondent

Date 12 March 2021

JUDGMENT

[1]The claim for breach of contract relating to unpaid wages is struck out under Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013.

[2]The claim for breach of contract relating to salary increases, sick pay and bonus payments is dismissed on withdrawal.

[3]The Claimant was unfairly dismissed.

[4]The claim of wrongful dismissal is well founded.

[5]The Tribunal will decide the remedy for unfair dismissal and wrongful dismissal at a further hearing. This will include the question whether any reduction is to be made for contributory conduct and Polkey .The parties are ordered to write to the tribunal with agreed dates to avoid for May and June 2021 within 14 days.

[6]The Respondent’s application for costs in relation to the breach of contract claim will be considered after the remedy hearing.

REASONS

[7]The Claimant was employed by the Respondent as a Technical Trainer/ Assessor from 1st March 2015. By a claim form received on 17th April 2019, he claimed breach of contract in relation to sick pay, salary increases, unpaid overtime and bonuses. The claim was resisted. In summary, the Respondent contended that there was no contractual document or agreement entitling the Claimant to the unpaid wages which he said were due and that bonus payments and salary increases were discretionary.

[8]The Claimant was dismissed without notice on 9th August 2019. By a second claim form received on 21st of August 2019, he claimed unfair dismissal, notice pay, holiday pay and arrears of pay. He said that the real reason for his dismissal was his having brought a grievance against his line manager and other managers.

[9]The Respondent resisted these new claims and said that the Claimant had been fairly and summarily dismissed on grounds of gross misconduct concerning inappropriate behaviour towards his managers, other staff and customers and that all sums due to the Claimant had been paid. Case Management Hearing

[10]A case management hearing took place on 5th November 2019. Employment Judge Glennie ordered that the two claims be heard together. A timetable was established for the request and provision of further information about the claims.

[11]The claims and issues were clarified as follows:6.1 Unfair Dismissal. This will involve consideration of the Respondent’s reason for dismissing the Claimant (the Respondent states that the reason was related to conduct, the Claimant states that the reason was that he had made the first claim); and whether the Respondent acted reasonably in treating that as a reason for dismissing the Claimant.

6.2 Wrongful Dismissal (i.e., a claim for notice pay). This will involve consideration of whether the Claimant committed conduct such that the Respondent was entitled to terminate his employment without notice

6.3 Unlawful deduction from wages. This will involve consideration of whether the Respondent failed to pay remuneration that was due to the Claimant. Further case management orders

[12]Employment Judge Glennie issued further case management orders on 2nd January 2020. The Claimant was ordered to provide the following information relating to the breach of contract claim: 1. details of any contractual provision that he relied upon for overtime, 2. a breakdown of his claim for £31,000 for additional hours showing the rates claimed and the time worked: and 3. the basis on which he claimed a pay rise and bonus for the period 1st January 2019 to 9th August 2019.

[13]On 21st of February 2020, Employment Judge Glennie directed that there should be a preliminary hearing to determine the following issue: to determine whether the Claimant’s complaint of unlawful deduction from wages should be struck out on the grounds that he has not complied with the tribunal’s orders to provide further information/ that it has no reasonable prospect of success.

[14]A preliminary hearing was listed for 7th April 2020. In the event due to pandemic restrictions, that hearing did not take place. Final hearing on 27th to 29th January 2021

[15]The final hearing took place by video from 27th to 29th January 2021. The parties were allowed regular breaks and were able to request additional breaks as necessary. I took notice of the fact that the Claimant was unrepresented and was not familiar with tribunal or court proceedings. In particular, I directed him on the legal tests which I had to apply at the start of the hearing and at several points during the hearing. As the Claimant was clearly tired and distressed at the end of his oral evidence on the afternoon of the final day, I asked the parties to prepare written submissions by 15th February 2021. In the event, the submissions did not reach me until 24th February 2021. Preliminary matters Withdrawal of breach of contract claim relating to sick pay, salary increases and bonus payments

[16]At the start of the preliminary hearing, the Claimant withdrew the elements of his breach of contract claim relating to sick pay, bonus and to salary increases and those elements were dismissed. Respondent’s application to strike out the breach of contract claim relating to unpaid wages

[17]I then heard the Respondent’s application to strike out the breach of contract claim relating to unpaid wages. I also heard submissions from the Claimant as to why this complaint should not be struck out. Much of the Claimant’s submissions related to what he considered to be unfair treatment by the Respondent. The Claimant’s principal argument on point was that his contract did not say in terms that he would not be paid for additional hours. He however accepted that the terms of his contract of employment clearly stated that flexibility was required and that any payment for additional hours had to be agreed with his line manager.

[18]My decision was to strike out this remaining element of the breach of contract claim for the reasons I gave orally at the hearing.

[19]These were in summary:a. The burden is on the Claimant to prove that he was entitled to these payments when his employment ended.

b. His contract of employment stated that while his hours of work were 40 hours per week that additional hours may be required in order to meet the demands of the job. Any additional remuneration had to be agreed with his line manager.

c. The Respondent said that no such payments had been agreed or paid.

d. The Claimant had not only failed to show that there was no contractual document or verbal agreement entitling him to payment for hours worked in excess of forty hours per week, but he also accepted on at least three occasions that there was no such entitlement.

e. His witness statement stated: “I have never claimed to have a contract written or verbal, to say that I would be paid overtime”.

f. In correspondence with the Respondent’s solicitor, he also accepted that he was not entitled to overtime, writing that payments for additional hours were “not in my contract and I have never stated it was”.

g. His oral submissions opposing the strike out application, included a statement “it is not in my contract that I will be paid overtime”. Inclusion of audio recordings of phone calls

[20]Just before the hearing, the Claimant sent the Tribunal a number of emails with audio files. The Respondent introduced two recordings: an extract of a recording of the grievance appeal hearing the length of which had been extended to include a section at the Claimant’s request and a recording of a call between the Claimant and a customer. The Claimant produced twelve audio recordings of varying length. He said that he had recorded many conversations with his line manager and other staff using his car’s dashboard camera. Some of the recordings related to hearings for which transcripts had been provided by the Respondent.

[21]At the end of the first day, I ordered the Claimant to send to the Tribunal copied to the Respondent by 9.30am the next morning a simple schedule setting out the following details in relation to each recording: the date of the recording, its duration, the identity of the person(s) being recorded, whether or not they were aware they were being recorded and the evidential value of the recording. This had to be sent by 9.30am to enable Counsel for the Respondent to take instructions from his client.

[22]The Claimant failed to comply with my order and simply resent his emails containing the audio files without the explanations I had ordered. At the hearing on 28th January 2021, the Respondent objected to the audio files being included. The Claimant said that he thought he had provided sufficient information and that he now objected to the inclusion of the Respondent’s two audio recordings as he felt he had been duped by the Respondent. I asked him to explain the evidential value of his recordings. He said that he wanted to include recordings of his line manager referring to the cost of his sickness absence to the company. I noted that Miss Coward accepted and documents confirmed that she had made this statement. The Claimant said that other recordings would show that he and Miss Coward had a good working relationship. He had edited the recordings to keep them short.

[23]The Respondent objected to the inclusion of the recordings on the basis that they had been selectively edited. He also disputed their relevance to the question of unfair dismissal as they appeared to relate to the Claimant’s wider grievances during his employment. The Respondent had provided transcripts of the recordings it relied upon. It had discussed its tapes with the Claimant and extended the length of one recording to ensure that it included material which the Claimant wished to rely on.

[24]I held a brief adjournment to consider the matter. I decided that it was not in accordance with the overriding objective to include the twelve audio recordings. Introducing them was likely to cause delay and could mean that the hearing did not complete in the time allowed. The Claimant had failed to comply with my Case Management Order which caused prejudice to the Respondent who had not been able to consider and take instructions on the recordings. The Claimant had not established that they were of evidential value.

Evidence

[25]I heard evidence from the following:a. Ms Heidi Coward, the Claimant ’s most recent line manager,

b. Mr Frank Harvey, Head of Member Services at the Independent Garages Association, who conducted the disciplinary hearing and who was the dismissing officer,

c. Mr Stuart James, Director, who conducted the grievance appeal

d. Mr. Paul Darwell, Head of RMI Academies, who heard the appeal against dismissal; and

e. The Claimant.

[26]I was provided with two bundles: an unfair dismissal bundle of 594 pages and a separate breach of contract bundle numbering 254 pages. There was duplication between both bundles. I listened to two audio recordings during the hearing. The first was the last eleven minutes of the grievance appeal hearing on 15th March 2019. The second was a recording of the Claimant’s telephone call to a customer.

[27]With the agreement of the parties, I indicated that I would first consider questions of liability before then, if necessary, hearing evidence on Polkey and contributory fault and argument on remedy.

Findings of fact

[28]I have gone into some detail on the Claimant’s grievance. That is because the Claimant says the real ground for his dismissal was his having brought a grievance. The Respondent’s grounds for dismissal include the Claimant’s behaviour at his grievance and grievance appeal hearings.

[29]The Respondent is a medium-sized employer which provides services to the motor industry. At the time of the Claimant’s dismissal, it employed a HR co-ordinator. One of the Respondent’s component organisations is the Independent Garage Association. The Respondent’s functions include carrying out inspections and arranging training for its members. Contract of employment and workplace policies

[30]The Claimant was employed from 1st March 2015 as a Technical Trainer on an annual salary of £28,000. His contract of employment fell into two parts: a Statement and Employment Agreement. The Statement describes his hours or employment as being 40 hours per week and also says that “due to the nature of your position with RMIF however, a degree of a level of flexibility is required around these hours”. His role involved traveling to RMIF member premises to carry out inspections and deliver training.

[31]The Employment Agreement also provides in a section headed Hours of Work “you are expected to be flexible and to work any additional hours that are reasonably required to fulfil the responsibilities of your job or meet the needs of the business with further remuneration as agreed with your line manager”.

[32]A Section in the Employment Agreement entitled Discretionary Bonus Schemes states: From time to time, the RMI may operate discretionary (noncontractual) bonus schemes are make ad hoc bonus payments. Payments from any schemes are based on the RMI achieving its targeted profits and you achieving any personal targets or objectives as set by the RMI. All schemes are subject to change or withdrawal by the RMI if without notice or compensation.… Details of any bonus schemes that may be in operation will be advised to you separately’

[33]An induction checklist signed by the Claimant on 16 March 2015 confirmed that he had read all the HR policies and processes. These included a Grievance Policy dated July 2011 (page 116), a Bullying and Harassment Policy dated September 2008 and a Disciplinary Policy dated September 2008. He was also referred to the Employee Handbook dated June 2013. Line management

[34]His initial line manager was Mark Champelovier. I found that their relationship was largely good but there were definite flashpoints mainly around the way in which the Claimant interacted with other staff. On 28th July 2016, in a one to one with Mr. Champelovier, the Claimant apologised for having sent a rude email to the Respondent’s Press Officer.

[35]On 26 September 2016, the Claimant emailed Mr Champelovier to follow up a oneto-one discussion the week before. The email primarily related to a salary discussion but also touched upon the Claimant’s manner of communication. The penultimate paragraph of the email states: “if you see me as being direct then all I can say is I am a conscientious professional worker and I care about my work. I’ve often worked well beyond my contractual hours in order to improve the quality of the service to our members as well as taking on the various job roles I currently hold.

[36]When Heidi Coward became the Claimant’s line manager, he welcomed her appointment sending her congratulations. Their relationship however was difficult from the outset. On more than one occasion, he spoke in an aggressive tone when they spoke on the phone. She would threaten to end the call “unless he got back in line” and had to hang up more than once. She asked Mark Champelovier to attend meetings as she was fearful of the Claimant’s verbal aggression. The Claimant said that his reactions to Ms Coward were provoked by her unwarranted interventions in his management of his diary.

[37]Her oral evidence which I found credible was that she had been too lenient of the Claimant’s volatile behaviour and that she should have taken steps earlier to address it before his behaviour escalated. She did not formally raise his behaviour requesting that action be taken until 18th March 2021; p.317 Complaints from office staff about the Claimant

[38]At a one-to-one meeting on 22nd March 2018, Ms Coward raised concerns from office staff about the way in which the Claimant spoke to them. While Ms Coward acknowledged that the office staff were “ a little sensitive” she asked him “when speaking to the girls in the office to be more respectful”. Her note of the meeting records that the Claimant “will be mindful of this”.

[39]The Claimant emailed Ms Coward the following day objecting to the draft record of the one-to-one saying that while he had not made any admission about his behaviour, he agreed to ‘be more mindful of the way I can come across and adjust the way I discuss the day- to-day issues of the job”. He noted that both Ms Coward and Mr Champelovier said that the staff were ‘oversensitive’ and he objected to the issue being recorded. Corrections were made by Ms Coward to the record. It now stated that the Claimant did not accept these comments and that he had been “talked to in the way described many times by the office staff and [Ms. Coward]” and recorded his view that she had “a biased approach to the remarks made about me”. In her oral evidence, she said that she regretted making these changes and felt manipulated by the Claimant. The Claimant thought that the complaints and Ms Coward’s raising them with him were both motivated by bias. I did not find any evidence to support this allegation.

[40]Of the two competing accounts, I preferred Ms Coward’s evidence. Her regret about the leniency with which she had initially treated the Claimant was genuine. I found that the Claimant lacks insight in respect of his forceful interactions with others for the reasons set out elsewhere in this judgment and that, on balance, it was likely that the complaints raised by office staff were well founded although Ms Coward thought that the staff could be too sensitive. I found that there is a pattern whereby the Claimant when presented with criticisms of his behaviour too readily deflects the criticism onto others. Incident at Southam Academy on 26th April 2018

[41]An incident at a staff meeting at Southam Academy resulted in the Claimant being spoken to about his unacceptable behaviour at a Field Team event including a presentation given by Ms Coward and a note being placed on his HR file. No formal disciplinary action was pursued at the time.

[42]I found that the Claimant had repeatedly interrupted Ms Coward’s presentation in a manner which resulted in another colleague becoming angry with the Claimant’s behaviour. The Claimant and this person had to be separated and taken outside. The Claimant’s perspective was that he had been entirely blameless as the other colleague, who was a friend of Ms Coward, was the aggressor. I did not agree with his perception of this incident for the following reasons.

[43]Ms Coward’s oral evidence was that the Claimant’s interjections were designed to sabotage her presentation and that she had felt humiliated. Mr James witnessed the Claimant’s behaviour outside the meeting immediately afterwards and told him to stand in the car park until he had calmed down. He told both parties that their behaviour was unacceptable and could have resulted in dismissal. In oral evidence, he recalled the Claimant shouting at him.

[44]Mr. James said that he did not go down the HR route at the time as Ms Coward did not want to take the matter further and he respected her wishes. He therefore got both individuals to apologise to conclude the matter. He now regretted this.

[45]The Claimant’s oral evidence was telling. He said that he recalled that it was a large meeting and that as he does not speak quietly his comments on Ms Coward’s presentation might have been perceived as aggressive but that was not his intention. He was asked to quieten down by the other colleague but carried on “ I did continue to raise points”. The other colleague then told him to shut his mouth but he carried on. This person threatened to hit the Claimant. I found that this reaction by a colleague who was close to Ms Coward indicated that the Claimant’s interventions were disruptive. The Claimant attributed the other colleague’s attack on him to their loyalty to Ms Coward. He did not display any insight as to how his verbal criticisms of Ms Coward’s presentation might have led to this situation.

[46]The Claimant also volunteered in his oral evidence that Mr James said to him immediately after the incident: “ I could get rid of you now. I could get you to put your keys on the table”. This only highlighted to me how unacceptable the Claimant’s continuing behaviour immediately after the incident must have been for Mr James to give such a stark warning. The Claimant, however, turned this on Mr James later saying that this was “disgusting behaviour by Stuart”. He did not appear to recognise the role played by his interruption of Ms Coward and his shouting outside the meeting.

[47]A contemporaneous note of this discussion was recorded on the Claimant’s HR file. This states that the Claimant accepted that his behaviour was unacceptable and could have resulted in his dismissal. He is recorded as saying that he would not behave like this again either in a group or one to one setting. The Claimant was reluctant in cross examination to accept that he had acknowledged that he had behaved badly and said that he had done so as he “felt captured by spies”.

[48]The Claimant disputed the veracity of the note. He noted that it did not appear on headed paper and was not signed. He also implied that it was sinister that the note had not been presented to him at the time. This reflected much of the Claimant’s attitude to the Respondent’s record keeping on HR matters. No doubt this derives from his technical role where he has to inspect garage records on MOTs etc and prides himself on his meticulous attention to detail. I saw no reason however to doubt Mr James’ evidence that the note was made at the time and that it was an accurate account of events. Relations with customers

[49]While the technical quality of the Claimant’s work was good and praise was passed onto him on 9 June 2017 from Yew Tree Garage regarding his quality control and professionalism on one visit, one customer had concerns about his behaviour on a visit in March 2018.

[50]The complaint was made by Rob Collinson of Collison Motoring Services regarding a site visit by the Claimant on 7th March 2018. He had been asked to wait before beginning an MOT quality control inspection as Mr Collinson was dealing with a customer.

[51]Mr Collison said that the Claimant ‘had a very bombastic personality wanting to steam roller through the whole process without regard for RC’s request to wait”. Mr Collinson said that he would not allow the Claimant onto his premises in the future. The Claimant recalled this incident but considered that Mr. Collison had been rude to him for which he had apologised. He was not notified of the incident at the time by his employer. The situation was managed by ensuring that the Claimant was no longer sent to jobs at that customer. The Claimant considered that the complaint was manufactured at the behest of Mr. James. I did not find that it was concocted and considered that it had taken place. I also found that it had not been regarded a particularly serious matter by the Respondent at the time as it was not raised with the Claimant.

[52]One of the customers for whom the Claimant carried out training was Autologic. Autologic had poor feedback for one of the Claimant’s training courses. They asked that he was not used for their courses again. This was not raised with the Claimant at the time. The Claimant sought to dismiss this feedback attributing it to the customer’s preference for another trainer rather than dissatisfaction with him. I did not need to decide this point. I found it significant that again, this matter was not raised with the Claimant. Rejection of expenses claim/ Claimant’s threat to resign

[53]On 30th November 2018, the Claimant submitted an expense claim which included a claim for work trousers. Ms Coward replied on 4th December at 12.45pm telling him that he could only claim for work boots and not trousers. I will not recount the many emails which this generated to Ms Coward and other staff with accusations of “dictatorial behaviour” save to say that Ms Coward’s refusal to pay expenses provoked a disproportionate reaction from the Claimant with explosive language including a threat to resign as a result. Sickness absence in December 2018/ Return to work in December 2018

[54]The Claimant went on sick leave for one week self-certifying that this was on grounds of stress. He received statutory sick pay in accordance with company policy.

[55]The Claimant returned to work on 12th December 2018. The sickness absence policy required him to have a return-to-work meeting with Ms. Coward. Prior to this meeting, he was asked to attend an informal meeting with Frank Harvey at which Ms Farmer took notes. The purpose of the meeting, Mr Harvey said was to understand what lay behind the Claimant’s emails and to move forward “so everyone felt safe, confident and comfortable working together”.

[56]The Claimant told Mr. Harvey that he understood that he can be “an acquired taste”. He said that he clashed with Ms Coward as they had similar personalities. He accepted that he can seem “defensive” and that his “emotions get mixed up”. The Claimant was asked to reflect on how his behaviour can intimidate others referring to his interactions with the “admin girls” and to recognise “when he is getting close to the edge of losing control”.

[57]In response, the Claimant pressed for examples of his behaviour. He noted that “he records his conversations with staff via his dash cam”. Mr. Harvey said that the Claimant needed to move forward and to stop analysing past events. The Claimant agreed to draw a line in the sand and move forward in a “positive, professional and respectful manner”. The discussion also covered the Claimant’s attitude towards Ms Coward. The Claimant was reminded of the need to respect the position of his line manager. The Claimant’s evidence was that this meeting had been an interrogation. I do not accept this. Mr. Harvey’s evidence which was credible was that he had spoken to the Claimant in an attempt to check his behaviour which was becoming increasingly aggressive to other staff including Ms Coward. Mr. Harvey made a note of the meeting which was added to the Claimant’s HR file. The Claimant again objected to any reliance on this note by the Respondent as he had not been given a copy at the time. I did not find any reason to doubt the provenance or accuracy of Mr. Harvey’s note of the meeting.

[58]The formal return to work meeting with Ms Coward took place after this meeting. The record of the meeting which was signed by both parties noted that the Claimant had been advised “on the impact of his absence, the disruption it can cause to business for the loss of revenue and staff morale due to increased workload”. The Claimant said that his stress had been caused by an accumulation of events in his personal life including the falling through of his house sale. Refusal of inflation related salary increase

[59]On 14th January 2019, the Claimant had a heated telephone conversation about his pay with Ms Coward. The Claimant recorded that telephone conversation and provided an extract of his transcript which appears at page 259 of the bundle. The Claimant took issue with a comment made by Ms Coward that he had cost the company money during his absence on sick leave in December 2018. This was something to which the Claimant took great offence, saying that over the past four years he had worked many hours above his 40 hours – “an average of 10 hours a week I’ve done for 4 years how about I put a bill in for that?” The Respondent witnesses confirmed that it was company policy to make staff aware of the cost of sickness absence.

[60]On 19 January 2019, the Claimant wrote to Ms Coward making a case for a pay review. He said that he had extended his skills set adding: “If you see me as outspoken then all I can say it’s because I am a conscientious worker, I care about my work and the professional standing of my profession. I’ve often worked well beyond my contractual hours, adjusted my leave days to help with important garage audits and worked on my days off in order to improve the quality of the service to our members. Considering all this, I feel it is only right and fair to ask for a salary that reflect this …”

[61]On 25th January 2019, Mr James emailed the Claimant saying that he could see no justification for an increase in his salary at this moment in time. The Claimant asked him to reconsider this decision and to take into account extra hours he had worked since 2015 “which amounts to at least 2000 hours which was unpaid for and for which I would be entitled to all the time given back’. Mr James replied saying that the contract of employment did not stipulate that pay rises were guaranteed. He said that the Claimant’s role was field-based and “as with any position like this there are long days and there are short days, this is why you have complete control of your own work schedules so you can balance out the working week to suit your personal life’. Approval of hotel bookings

[62]The relationship between Ms Coward and the Claimant continued to deteriorate. A series of email exchanges took place between the Claimant and Ms. Coward between 15th February and 27th February 2019 regarding his request to book hotels for travel to carry out customer visits. Ms Coward recommended changes to his schedule to save costs. The Claimant regarded her intervention as unwarranted interference and submitted a grievance. Grievance against Heidi Coward dated 18th February 2019

[63]On 18th February 2019, the Claimant raised a formal grievance against Ms Coward. This can be found on page 271 of the bundle. This grievance and the disciplinary are closely linked and for this reason, I reproduce the wording of the grievance. Three issues were raised by the Claimant. 1. Pay Rise and year-end bonus I believe my performance during the year was entirely satisfactory stop I believe I have been singled out for punishment for being off sick, for a reason I saw my GP and was prescribed medication. My absence was genuine. Constantly being told I cost the company money does not sit well with your policy statement. 2. Contractual hours, Performance and additional Roles. I believe my work has been exemplary in this regard stop I have always worked well beyond my contractual hours (not because of inefficiency, but because I work professionally and would not let people down) stop I have also been quite happy to take on different roles and responsibilities. In doing so my skill set, for which RMI can take advantage of has not been properly recognised in my pay and conditions. 3. Unfair treatment and bullying. I have had discussions with Heidi Coward and would describe these discussions as defensive, argumentative and insincere. That, added to the penalising aspect of not been paid for genuine sick absence led to my GP prescribing medication. Even when I return to work I was “interrogated’ and the conversation simply revolved around what I cost the company. Again, it goes nowhere near to meet the aspirations of your policy.

[64]A grievance investigation meeting took place on 25 February 2019. This was conducted by Kevin Perks, the General Manager who has now left the Respondent. Ms Farmer was also present at the meeting and took notes. The notes appear at pages 271a to 271W. Ground 1 - Pay Rise and year-end bonus

[65]In summary, the Claimant said that he knew his performance had been satisfactory because he got good feedback. He had been singled out for punishment because he had taken sick leave in December 2018 as a result of the build-up of issues with Ms Coward. While there was no contractual entitlement to sick pay, it was his understanding that it had been paid as a matter of discretion to other staff in the past. The non-payment of sick pay led him to deduce that the company did not consider his sickness to be genuine. Ground 2 - Contractual hours, Performance and additional Roles

[66]The Claimant said that his role had expanded since joining the respondent and that he now offered 17 different areas of training. New trainers were being paid at least £1,500 more than him and those trainers had to shadow him to learn their roles. Ground 3 - Unfair treatment and bullying

[67]The meeting with Frank Harvey on his return from sickness absence had not addressed his well-being. He was to draw a line in the sand and move forward but he felt that he needed to defend himself. Mr Harvey was constantly ‘”trying to make me feel that it was my problem, and that was continued when Heidi came in and that I need to look on the way I came across. I need to be aware of how I’m perceived”. He thought that Ms Coward’s oversight of his diary was designed to goad or provoke him.

[68]When asked by Mr Perks what outcome he expected from the grievance, the Claimant said that he wanted to be treated with respect and that he felt Ms Coward was bombarding him with emails. He thought however that he and Ms Coward could continue working together.

[69]Mr. Perks concluded the meeting by thanking the Claimant for his honesty and said that he would look into the matters raised emphasising that he would deal with facts rather than emotions. He added: “ I have a concern about the working relationship with yourself and Heidi, so my preference is for you to actually not work tomorrow. Take the day off … Don’t get into any sort of conflict with Heidi and I will have that conversation with Heidi as well I say look this is what we’re doing at the moment, while I’m looking into that. If I need to call you for anything else, you said there are some things you want to send me anyway then please do.’

[70]The Claimant thanked Mr Perks for listening to him, saying ‘I feel that you’ve actually listened to me and what you think is another matter of course that is up to you.’ On 1st March 2019, the Claimant emailed Mr. Perks and said that on reflection he thought that it would be difficult to continue working with Ms Coward. Later that day, he sent in additional information. Grievance investigation

[71]As Mr Perks has left there was scant information about how he carried out the grievance investigation. This is relevant given the overlap between the grievance and disciplinary proceedings as a matter raised anonymously in the grievance investigation – the Southam Academy incident - and for which no disciplinary action had been taken at the time was then used as a basis for disciplinary charges. In particular and of concern as I explain later in my Discussions and Conclusion, there is no evidence as to whether or not he interviewed Ms Coward which one would expect given that the Claimant’s grievance was against her. He appears to have carried out only a paper review of her management of the Claimant. He did however obtain anonymous statements from two of the Claimant’s colleagues in circumstances which remain unclear and troubling and which I deal with below. Grievance feedback meeting 12th March 2019

[72]On 12th March 2019, Mr Perks met the Claimant in order to relay the outcome of the grievance. The Claimant’s grievance was not upheld on any ground. Mr Perks’ report appears on page 285 to 289 of the bundle. He asked for statements from colleagues about the Claimant's professionalism. Two anonymous responses were received. One mentioned the Claimant complaining about his salary and bonuses. The other referred to his aggressive behaviour at the Southern Academy on 26th of April 2018. I did not find Mr Perks’ explanations as to how these statements had been solicited in his report or in the transcript of the feedback meeting to be clear or satisfactory. As he did not give evidence, it was not possible to ask him about he conducted the investigation and complied his report.

[73]As he was going through the report, Mr Perks made reference to the anonymous statement from a colleague commenting on the Claimant’s frustration regarding his salary and lack of bonus. At that point, the Claimant stated that Mr Perks had ‘gone out of the way to blacken his name’ and said that felt that Mr Perks had been biased. He stood up as if to leave the meeting. Mr Perks continued going through his investigation report. The meeting concluded as the Claimant was unwilling to continue. He was advised that he had a right of appeal and would receive the grievance outcome in writing. The way in which the Claimant responded to Mr Perks later became grounds for disciplinary action. There is a dispute on the facts. The Respondent says that the Claimant shouted at Mr Perks and was aggressive.

[74]The Claimant says that he had an emotional outburst as he felt that his livelihood was at risk but did not accept that he had been aggressive. Here, I found that the Claimant had grounds for feeling ambushed by the inclusion of these anonymous statements. He was not told how many of his colleagues had been asked to express views under the cover of anonymity about his professionalism. He had a not unreasonable fear that personal information about his health problems and other problems might have featured in these discussions between Mr Perks and his colleagues. I do not go so far as to say that this justified the Claimant’s angry outburst but it is important context.

[75]Mr Perks wrote to the Claimant on 14 March 2019 formally rejecting his grievances and advising him of his right of appeal. The letter concluded: ‘Due to the issues brought to light by your grievance, we will take the following actions• Formal action recommendation – Further investigation in relation to performance matters uncovered,

• Formal action recommendation – management to consider reviewing individual performance review processes” Grievance against Kevin Perks

[76]On 14th March, the Claimant wrote to Stuart James sending him a letter of additional grievance against Mr Perks headed ‘ Direct Discrimination by Perception/Breach of Confidentiality’. It complained about Mr Perks’ obtaining statements from his colleagues. He regarded this as an attempt to discredit his case for discrimination and bullying. He also objected to the notes from the informal discussion with Frank Harvey on 12th December 2018 which he had not seen before. The notes did not reflect that it had been an ‘interrogation style meeting”. He said that he wished to raise these additional concerns through a grievance; p.297. The Claimant also wrote to Mr Perks on 15th March saying that he had made the working relationship with his colleagues “difficult and uncomfortable”. Working relationship with Heidi Coward

[77]The Claimant’s letter to Mr. Perks said that his working relationship with Ms Coward had completely broken down. This is demonstrated by a series of emails between the Claimant and Ms Coward about his appointments in one of which the Claimant accused her of “ pushing me to react in a way that you will take advantage of. You are fully aware of issues that I am pursuing … can you try to understand that you are not treating me in a fair manor.” Contact with Ms Farmer on 15th March 2019

[78]The Claimant called her on 15th March as he had been unable to reach Mr Perks by telephone. He wanted to speak to him about the amount of work allocated to him by Ms Coward. Ms Farmer told him that she could not advise on operational matters and that he should wait to speak to Mr Perks. The Claimant then raised his grievance appeal and queried her role in the matter. When she told him that she could not discuss this, the Claimant became angry, called her a liar and hung the up. This call was on Ms Farmer’s speaker phone and was heard by Mr James. The Claimant did not deny that this call took place and that he was upset but he did not accept that he had called her a liar or shouted. This term was not out of keeping with the extreme language which the Claimant was using at this time and I find that he did call her a liar. I also find that he shouted.

[79]He also wrote to Ms Farmer objecting to her role in the grievance appeal hearing saying that there was a conflict of interest and that the hearing should be conducted by an impartial person. Grievance Appeal

[80]The Claimant appealed the grievance on the following five grounds: 1. The process that you have in place for dealing with my grievance was unfair. There was no one at the hearings that were impartial due to the status of their positions and the involvement of individuals. 2. Further issues relating to a breach of confidentiality and disclosure of personal circumstances were made (see letter sent 14th March) . 3. Breach of mutual trust and confidence … without reasonable and proper cause. 4. The issues that were raised on behalf of the RMI against me were not part of the grievance and therefore amount to an attempt to avoid dealing with the grievance and to discredit me. 5. Further stress caused by the effects of being alienated in an attempt to force a decision for me to leave the company. Grievance appeal hearing on 18th March 2021

[81]The Claimant attended a grievance appeal hearing with Mr James on Monday 18th March 2019. A typed transcript of the meeting appears at pp. 301a to 301ee. The notes of that meeting are at pp. 307 to 310. The meeting appears to have started well but became very heated by the end. During the meeting, Mr James had to keep reminding the Claimant to focus on his appeal grounds.

[82]The Claimant went through his grounds of appeal and clarified that the second matter raised in his additional grievance overlapped with his original grievance and would therefore be considered with this ground. He elaborated on his grounds of appeal thus:

[83]Mr Perks had not been impartial because he did not address the grievance Issues and rather had discredited the Claimant’s complaints and had gone to lengths to find out information that had nothing to do with the grievance. He said that he had been unaware that Mr Harvey had taken notes of the informal meeting on 12th December 2018 and that those notes were not a true reflection of what was discussed and Mr Harvey had been ” interrogative”.

[84]Mr Perks had approached unnamed colleagues who had made reference to the Claimant’s personal circumstances and health problems. He had failed to deal with the direct connection between the Claimant being off and then not receiving a pay rise.

[85]The Claimant queried Ms Farmer’s role. Mr James said that HR’s role is to attend and not to advise or comment. On the question of confidentiality and breaches of information, Mr James said that he had not produced any evidence to show that there had been breaches. The Claimant said that the document showed that Mr Perks had told others about his grievance. Mr James rejected this saying that they showed that colleagues were commenting on the Claimant’s attitude.

[86]The Claimant said that he knew his future was finished but that he would not walk away. He felt that he had been managed by Heidi Coward ‘in a dictatorship’. His previous managers had spoken wrongly to him too. Mr James brought up the argument at the Academy. The Claimant objected to this being put on the table and said that he wanted to deal with the appeal.

[87]The Claimant then suggested that “people who work for Stuart James would feel intimidated and bullied’. Mr. James commented that those were strong words and that he thought the Claimant was spiralling downwards. The Claimant was asked if he had been rude to people. The Claimant did not answer this directly saying only that he had health issues and did not feel that his health was being considered adding “if the company keep pushing, it will create a response”.

[88]Mr James then told the Claimant that a meeting was going to be held on Wednesday in Rugby in relation to the Claimant’s conduct with Kevin Perks. The Claimant said that he thought that Mr James was a bully and stood up saying that there was enough information to obtain legal advice against the company. Mr James said that if he was going to take legal advice then he would have to suspend him. Mr James’ evidence was that the Claimant not only stood up but then leaned over him and was shouting and finger pointing The Claimant said that Mr James made him ill and pushed him over the edge. He told Mr James that he was ‘pathetic’. He ended the meeting by saying ‘I’ll see you when it comes to the right time and place. It’s disgusting the way you tried to bully me”. Mr James said that the Claimant stormed out and slammed the door.

The law

[89]A recording of the last portion of this meeting was played at the Tribunal hearing. I heard the Claimant shouting and using the language described on the audio tape. He began to lose control when he was told that he would have to attend a disciplinary hearing. I found that he did not shout however until the point that Mr James told him that he would suspend him if he consulted a lawyer. Obviously, It was not possible to tell the precise manner in which the Claimant left the room from the audio tape but it was evident that he left the meeting abruptly. Ms Coward’s complaint against the Claimant

[90]Ms Coward wrote a To Whom it May Concern letter on 18th March 2019 (p.317) complaining about the Claimant’s behaviour. He was described as uncooperative, aggressive and uncompromising. She said that she did not feel comfortable meeting him outside the office without someone close by as she feared her personal safety. She said that she thought “that he has an issue with Women or myself being his line manager”. No evidence was produced to show that Ms Coward was formally interviewed in respect of the serious allegations she had made. Sickness absence between March and July 2019

[91]On 20 March 2019, the Claimant went on sick leave. His GP completed a MED3 form on 25th of March 2019 recording stress at work as the reasons for his absence. He remained signed off sick until 19th July. Notification of disciplinary hearing

[92]Prior to this, the Claimant was sent a formal invite to a disciplinary hearing on his return from sickness absence. This was to be chaired by Mr Perks with Ms Farmer taking notes. The letter said that the outcome of the meeting may result in a verdict of gross misconduct for which dismissal could apply.

[93]The allegations are set out in abbreviated form below:• Aggressive Behaviour 1. Aggressive behaviour towards the customer when carrying out the role when carrying out an MOT quality audit approximately March 2018 at: sends motoring services owned by the vice chairman of the independent garage Association, Rob Collinson (RC). Stavros Lazarou (SL) behaviour aggressive and nit picky and caused tension with the MOT tester and RC… 2. Volatile behaviour towards staff within the organisation (a ) since 2016, incidents of rude and offensive behaviour have been across recorded across the company and dealt with as they have arisen with the optimistic outlook that they could have been resolved without the need for formal HR intervention. The levels of volatile behaviour have increased particularly in the last 12 months when SL chose to aggressively verbally attack his line manager in an open team meeting from which other members of the team became agitated by his behaviour to the extent that one of the team felt his levels of the attack were so unacceptable that he wanted to discuss it outside of the meeting with SL. (b) on Friday, 15 March 2019, SL called Ms Farmer (HR) in an agitated state …and became increasingly angry and started shouting, this culminated in him calling her a liar, he then hung the phone up. ( c) a grievance feedback meeting on 12 March 2019. This was chaired by KP and minutes taken by Ms Farmer (HR). KP started to read from the investigation pack a peer statement … At this point SL interjected and strongly stated (with raised voices) that he felt Kevin had gone out of his way to blacken his name and accused KP of a deliberate attempt to dismiss his name. Said he is ending this meeting as he was being interrogated. SL stood up and was shouting …At this point SL sat back down continue to act in an argumentative and threatening way. (d) on Monday, 19 March 2019, Stuart James held a grievance or appeal meeting as well as an additional grievance against Kevin Perks based on .2 of the original grievance Ms Farmer (HR) was taking minutes. The meeting was recorded by both parties…. SJ explained the meeting had concluded and the next stage was for SL to attend a meeting on the Wednesday morning to discuss his conduct and performance in the role. At this point, SL immediately reacted, started shouting and stood up leaning over SJ and pointed at him calling him a bully SJ remained calm and asked SL to calm down SL continued to shout and stated that he would not be attending the meeting. …At this point SL threatened SJ said ‘is I’ll see you when it comes to the right place and time, he then picked up his bag and stormed out of the room slamming the door behind him. 3. Threatening and intimidating behaviour towards line manager (a)In recent months, SL’s attitude has been more and more difficult to work with, particularly since the dispute on his expenses in December 2018. Since then, there have been several occasions for SL has been uncooperative and progressively questioning every request that is made of him…. Her personal opinion is that he has a serious issue with women or women in a management position and does not feel that the relationship with SL can be resolved. She feels that she cannot perform her role any more in an environment which she feels unsafe and has no desire for any more confrontation directly with SL. HC does not see a resolution due to SL’s aggressive and uncompromising nature.

• Conduct & Professionalism 1. Reputational damage resulting in refusal to utilise SL on company contracts …Early in March 2019, Frank Harvey was notified by Autologic’s training manager) backed up in writing on 20 March 2019 (outlining a number of courses required by them to be delivered and request for SL not to be stop this specific request was due to negative feedback received from their clients. Feedback detail outlined the courses could be more engaging and dynamic and it appeared SL was only reading from the PowerPoint presentation. A lot of time was spent planning through slides with little interaction of the candidates taking place with very little opportunity to ask questions talk about the topic. Disciplinary meeting 8 August 2019

[94]The disciplinary hearing took place on 8th August 2019 and was chaired by Mr Harvey taking the place of Mr Perks who was on annual leave and was not therefore available with Ms Farmer taking notes. The notes appear at pp. 369 to 369u. The Claimant’s response to the charges against him was as follows. Collison Motors This allegation was manipulated and could be attributed to the fact that Mr Collinson was personally known to Stuart James and that they were both on a company board together. Incident at Southern Academy. The Claimant dismissed this allegation as ‘thoroughly false’. He said that he had been physically threatened and that the other party was restrained because he wanted to attack him. Telephone conversation with D Farmer He was upset rather than angry. He denied shouting down the phone. He said that he had been goaded by his line manager who had been altering his shift patterns and locations of work. Grievance meeting with Kevin Perks He had expected this meeting to deal with his formal grievance and had instead been presented with hearsay information. The company had not dealt with his grievance and that, since then, it gone out of its way to fabricate and put together anything to discredit him in order to find a way to dismiss him. Grievance appeal hearing with Stuart James. This meeting had failed to address the issues he had raised including a personal data breach. He had told Stuart James that he was directing the managers beneath them as to how to handle his grievance. Relationship with Heidi Coward He denied that he had been aggressive towards her. He said that if anyone had been aggressive it was her. He denied that he had a problem dealing with women. He had sent an email to Heidi Coward to welcome her promotion. Said he had while he had criticised the press officer, he had not been aware that the press officer was a woman. Autologic He disputed that there had been feedback about his training courses for this customer and said that it preferred to use another trainer called Craig as he believed that they wanted to poach him. Concluding statements by the Claimant The disciplinary had only come about because he had accused the company specifically Stuart James of fabricating information following his grievance and that the disciplinary was an attempt to discredit him. He regarded his treatment as “unbelievably despicable”. Mr Harvey told the Claimant that he would take into account everything he had said and would be in touch with the outcome of the disciplinary hearing. The Claimant submitted an additional written statement which can be found at pages 370b to c which largely repeated his submissions at the hearing and concluded by saying that the allegations were “false, fabricated and manipulated” and driven by Stuart James. Outcome of disciplinary hearing

[95]The next day, Ms Farmer wrote to confirm the outcome of the disciplinary hearing which was dismissal on grounds of gross misconduct with immediate effect. The letter concluded by confirming the Claimant’s right of appeal. The Claimant immediately notified his intention to appeal by email stating that the decision was pathetic and that they had behaved in a “corrupt and shameful way” . He was asked to submit written grounds of appeal. Claimant’s call to Autologic on 12th August 2019

[96]After his dismissal, the Claimant called Damon Howes of Autologic. The call was recorded both by Mr Howes and by the Claimant. A copy of the recording was subsequently provided to Mr Harvey by Mr Howes. Mr Howes confirmed that he had requested that the Claimant not be used as a trainer due to poor feedback. The recording was played at the Tribunal. The Claimant was heard to became angry and said that he would name Mr Howes and his company as what they had done was “despicable” and that they were “quite happy to see people get the sack”. As the conversation went on, it is clear from both the transcript and the recording that I listened to that the Claimant was interrupting Mr Howes and that his voice was raised. He ended the call by saying you are just as dumb as the RMI and all you care about is yourself, your money INAUDIBLE” Disciplinary appeal Written appeal statement

[97]The Claimant submitted a written statement. This can be found at pp.394-6 . Of note, he said that if these were serious allegations, they would have been presented to him at the time and most of them took place between one and three years before. Disciplinary appeal hearing 29 August 2019

[98]The Claimant did not attend the disciplinary appeal hearing which took place at the RMI’s office in Rugby . He had been offered reimbursement of travel expenses. a standard return train ticket but objected to travelling anywhere other than to the RMI premises in Winchester. The hearing was chaired by Paul Darwell with notes being taken by Ms Farmer. His report appears at pp.411-414 and outlines the process he followed. Mr Darwell reviewed the Claimant’s appeal statement. He listened to the audio recordings of the grievance and grievance appeal hearings and to the call to Autologic which of course post-dated the decision to dismiss. His decision was that all the charges were upheld and that the sanction of gross misconduct still applied and therefore rejected the appeal. The outcome of the disciplinary appeal was notified to the Claimant on 30 August 2019; 415-416.

Relevant Law

[99]There is no dispute that the Claimant was an employee of the Respondent, had more than two years’ continuous service and was dismissed. As such he qualifies for the right not to be unfairly dismissed.

[100]The question of whether a dismissal is fair or unfair is determined by reference to Section 98 of the Employment Rights Act 1996: “(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 it is … a reason falling within subsection (2) (2) A reason falls within this section if it – (b) relates to the conduct of the employee. (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 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.

[101]The burden is on the Respondent under Section 98(1) to show that the reason for dismissal was a potentially fair one. Under Section 98(4), the burden of proof is neutral.

[102]As this dismissal concerns conduct, I must have regard to British Home Stores Ltd v Burchell

[1978] IRLR 379

, which lays down in essence a three-stage test:(i) the employer must establish that he genuinely did believe that the employee was guilty of the misconduct;

(ii) that belief must have been formed on reasonable grounds; and

(iii) the employer must have investigated the matter reasonably.

[103]The test I must apply is whether the employer acted reasonably, not whether I would have come to the same decision myself. In many cases of alleged misconduct there will be a 'range of reasonable responses' open to employers, so that, provided that the employer acted as a reasonable employer could have acted; the dismissal will be fair: Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

. That test recognises that two employers faced with the same circumstances may arrive at different decisions, but both of those decisions might be reasonable.

[104]The range of reasonable responses test applies as much to any investigation and the procedure followed as it does to the substantive decision to impose dismissal as a penalty Sainsbury's Supermarkets Ltd v Hitt

[2003] IRLR 23

. On the one hand, the employer does not need to carry out an investigation with the same degree of rigour as say a police investigation into a criminal matter. On the other hand, as the ACAS guide to discipline and grievance at work says at paragraph 4.12: “The nature and extent of the investigations will depend on the seriousness of the matter and the more serious it is then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against.

[105]If I find that the dismissal was unfair and have to go on to consider whether there should be deductions from compensation then, on the authority of Polkey v A E Dayton Services Ltd

[1987] IRLR 503

, compensation may be reduced on the basis that had the employer taken the appropriate procedural steps which they did not take then that would not have affected the outcome.

[106]Finally, in the event that I make a finding that the Claimant was unfairly dismissed, the provisions of s.122(2) and s.123(6) of the Employment Rights Act 1996 empower me to reduce the basic and compensatory awards because of the Claimant’s conduct or contributory fault respectively. Submissions Submissions for the Claimant

[107]Briefly stated, the Claimant submitted that the real reason for his dismissal was that he had complained about a culture of bullying by bringing a grievance. He had been forced to work excessive hours and had challenged an aggressive style of management. He had responded emotionally to the threat of losing his livelihood and this had been depicted by the Respondent as intimidating behaviour. Many of the matters raised were not highlighted to him at the time. His grievance and disciplinary hearings should have been conducted by other managers. There was a clear conflict of interest in allowing Ms Farmer to play a role in his grievance and disciplinary as she was Mr James’ PA. He had been disadvantaged by not being able to play his audio recordings and considered that he had misled by the Respondent’s representatives as to how to have these introduced into evidence. Submissions for the Respondent

[108]The Respondent submitted that there had been concerns about the Claimant’s behaviour since 2016. These had been dealt with informally by his previous line manager and then Ms Coward until the point at which incidents had accumulated so that, taken together, they constituted potential gross misconduct and led to disciplinary action resulting in the Claimant’s dismissal.

[109]The Claimant’s behaviour at the grievance appeal hearing was the last straw and resulted in the Claimant being asked to attend a meeting with Mr. Perks regarding his conduct. It was accepted that there was no formal investigation report but there was ample evidence that matters were fully and properly investigated by Mr. Perks.

[110]The Respondent had a genuine belief that the Claimant had behaved aggressively towards the customer, Mr. Collinson. Similarly, the Respondent had a genuine belief that the Claimant had behaved unacceptably at Southam Academy. No investigation was required as the Claimant was on record as accepting that his behaviour had been poor and could not be repeated. No investigation was required in relation to the phone call to Ms Farmer as this had been overheard by Mr. James.

[111]The final two incidents of volatile behaviour related to the Claimant’s conduct towards Mr Perks at the grievance feedback meeting and to Mr James at the grievance appeal meeting. Neither required investigation as the transcript of the grievance feedback meeting sets out the Claimant’s words and the audio of the grievance appeal meeting was played at the hearing and speaks for itself.

[112]It noted that there was no formal witness statement taken from Ms Coward in relation to her complaint against the Claimant dated 18th March 2019 but the investigation of this complaint was nevertheless reasonable having regard to the size and administrative resources of the Respondent. Ms Coward’s oral evidence should lead me to find that the belief in misconduct was genuine.

[113]Mr Harvey had a genuine belief that there was an issue in relation to the Claimant’s conduct in respect of the Autologic training and that he had verified this with the customer.

[114]The Respondent had ample evidence of the Claimant’s aggressive and volatile behaviour and it was beyond question that there were reasonable grounds for the Respondent’s genuine belief in misconduct. This misconduct was capable of amounting to gross misconduct as it involved “an escalating pattern of behaviour”, dismissal was within the band of reasonable responses.

[115]The Respondent said that the Claimant had not made specific allegations of procedural unfairness other than alleging a widespread conspiracy. This was not correct and I took into account the fact that the Claimant was a litigant in person. The Claimant had repeatedly queried the role played by Ms Farmer in the disciplinary process in his dealings with the Respondent, at the Tribunal hearing and in his written submissions in addition to his maintaining that the overall disciplinary process was flawed not least to the link between his first grievance against Ms Coward and the disciplinary.

[116]The Respondent submitted that the investigation was reasonable, the Claimant had notice of the allegations, the disciplinary hearing was postponed until he returned from sick leave, he had been given a right of appeal and travel costs to attend the appeal hearing. A fair procedure had been followed according to the statutory requirements. The dismissal was substantively fair and the misconduct entitled the Respondent to dismiss summarily.

Discussion and conclusions

[117]I take as my basic legal structure the issue set by EJ Glennie together with the three stage Burchell test namely(i) the employer must establish that he genuinely did believe that the employee was guilty of the misconduct;

(ii) that belief must have been formed on reasonable grounds; and

(iii) the employer must have investigated the matter reasonably. What was the reason or principal reason for dismissal ?

[118]I find that the that the reason for dismissal was the Claimant’s misconduct. I do not accept his argument that he had been dismissed for raising a grievance. The close timing between both processes and the degree of overlap in that disciplinary charges related to matters which surfaced during the grievance namely the anonymous statement which brought up the Southam Academy incident and the Claimant’s volatile conduct at the grievance investigation meeting and the grievance appeal meeting may have led the Claimant to conclude that the disciplinary process was a reprisal for his grievance. I did not accept that. There was ample evidence that the Claimant was dismissed for his conduct namely volatile behaviour. Having regard to that reason, was the dismissal fair or unfair?

[119]Conduct being a potentially fair reason for purposes of Section 98(2)(b) Employment Rights Act 1996, I need next to consider whether the dismissal was fair in light of the Burchell test. (i) Was there a genuine belief that the Claimant was guilty of the misconduct?

[120]Having heard evidence from Mr Harvey who was the dismissing officer, I have no doubt that he had a genuine belief that the Claimant was guilty of volatile behaviour. His oral evidence, which is supported by the other evidence, was that there had been an escalation in the Claimant’s poor behaviour and lack of selfcontrol. He said that there was a clear pattern in that the Claimant would react badly when he was asked to do something with which he disagreed. (ii) If so, was that belief based on reasonable grounds?

[121]I find that there were reasonable grounds for the Respondent’s belief in the Claimant’s misconduct. Mr Harvey had spoken to the Claimant in December 2018 about the need for him to regulate his behaviour. He was therefore aware of Ms Coward’s concerns about the Claimant’s behaviour towards her and the complaints raised by the office staff. He had his own note and recollections of the “draw a line” meeting to rely on. He had Mr. James’ contemporaneous note of the incident at Southam Academy and transcripts of both grievance hearings. He also listened to the recordings of those hearings. (iii) Was there a reasonable investigation?

[122]I find that there had not been a reasonable investigation. The Respondent’s policy says “ a thorough investigation to establish the facts and circumstances must be carried out and all relevant information gathered”; p.132.

[123]The Respondent conceded that there had not been a single discrete investigation culminating in a formal investigation report. Mr Wayman submitted that none was required as the dismissal followed a number of incidents which were investigated, documented and dealt with informally in the hope that the behaviour would not be repeated. Examples of this were Mr James’ record of his discussion with the Claimant about the Southam Academy incident and Mr Harvey’s record of the “draw a line” meeting. I agreed with him so far as those incidents were concerned.

[124]I parted company with him in relation to a number of other matters where I considered that the range of reasonable responses required further investigation particularly in relation to the very serious allegations made by Ms Coward. Mr Wayman invited me to find that there was ample contemporaneous evidence that matters were fully and properly investigated at the time. The evidence was scant.

[125]I was pointed to Mr Perks having carried out such additional investigation as was required. I did not accept that there was such evidence. Mr. Harvey’s oral evidence referred only to Mr Perks having “done the preparation” noting that Mr Perks had also been due to hear the disciplinary.

[126]I also did not understand how Mr Perks could reasonably have investigated the allegations regarding the Claimant’s behaviour towards him at the grievance feedback meeting or for that matter having so investigated gone on to hear allegations relating to himself as had originally been planned. This was not within the range of reasonable responses. This cast doubt on the reasonableness of the investigation taking full account of the size and administrative resources of the Respondent.

[127]The Respondent conceded that Mr Perks had not formally interviewed Ms Coward about her allegations about the Claimant in that there was not a formal interview statement. Given the nature of her allegations, I found that this was not within the band of reasonable responses. Ms Coward made very serious allegations against the Claimant. She said that she feared for her personal safety and implied that she perceived him as a physical threat. There was a gendered dimension to her complaint in that she said that she believed that the Claimant had a problem with women.

[128]Given the seriousness of those allegations and the dictates of the ACAS code that serious allegations require an open mind and more rigorous investigation, a reasonable employer would have interviewed Ms Coward about her allegations. This failure by Mr Perks to interview Ms Coward also jarred with the breadth and rigour of the investigation carried out by Mr Perks in relation to the Claimant’s grievance which encompassed gathering evidence from an unknown number of the Claimant’s colleagues about his professionalism.

[129]Mr Wayman also submitted that no investigation was required in relation to the Claimant’s behaviour at the disciplinary appeal meeting with Mr James as the recording of that meeting spoke for itself. I did not agree. The Claimant behaved poorly during his meeting with Mr. James but he had lost control and shouted at the point that Mr. James threatened to suspend him for consulting a lawyer about his workplace rights. That merited investigation. A reasonable employer would have looked into this further. Was there a fair disciplinary process?

[130]The Claimant had been notified of the charges against him. He was advised of his right to be accompanied and the disciplinary hearing did not take place until his return after several months’ sickness absence. He was offered a right of appeal and exercised that right submitting written grounds of appeal. He declined to attend the appeal hearing notwithstanding the Respondent’s offer to reimburse his travelling expenses.

[131]The role played by the Respondent’s former HR officer raises issues of procedural fairness. Her role was described as being only a notetaker. One of the allegations of volatile conduct relates to a complaint from her about the Claimant’s behaving aggressively to her during a telephone conversation. While it may have been unsatisfactory to have her present at a disciplinary hearing adjudicating on an allegation relating to her, I accept the Respondent’s evidence that she acted only as a notetaker and not as a decision maker on a matter in which she was a complainant. I do not accept the Claimant’s submission that her dual role as Mr James’s PA rendered the disciplinary process unfair. I take fully into account that the Respondent did not have a HR department and that some duplication of roles in an organisation of the Respondent’s size is inevitable.

[132]The failure to interview Ms Coward tainted the disciplinary process. A reasonable employer faced with serious complaints that the Claimant posed a physical threat to a colleague and that he had difficulties with women would have investigated such complaints carefully and conscientiously.

[133]The Claimant was never interviewed as part of an investigation.

[134]On balance, I find that there was not a fair process. The appeal did not cure the defects of the earlier stages. Ms Coward’s complaints about the Claimant were not properly investigated as the Claimant’s guilt was predetermined. The Claimant was not asked to set out his side of the story before matters were pressed to a disciplinary hearing. Whether the Respondent acted reasonably in treating that (misconduct) as a reason for dismissing the Claimant

[135]I will consider each of the allegations against the Claimant under the broad categories of behaviour towards customers and staff.

[136]The allegations against the Claimant in relation to Collinson Motors and Autologic were never raised with him until the disciplinary hearing. Had these matters been as serious as the Respondent suggests, it is likely that immediate steps would have been taken to raise them with the Claimant to prevent other important customers becoming dissatisfied. It was not within the range of reasonable responses to dismiss on these grounds.

[137]Turning to the Claimant’s behaviour to staff, no disciplinary action was ever taken in relation to either the Southam Academy incident or the complaints relating to office staff. These had the flavour of old incidents which were resurrected to pad out the disciplinary allegations. To dismiss the Claimant for these matters was not within the range of reasonable responses. The incident with Ms Farmer was inappropriate but dismissal was outside the range of reasonable responses.

[138]The Claimant’s behaviour to Ms Coward was clearly deteriorating but a reasonable employer would have considered whether his behaviour had yet reached the stage where dismissal was within the range of reasonable responses for his conduct. A reasonable employer would have explored the reasons for the Claimant’s behaviour before deciding what sanction to impose.

[139]Dismissing the Claimant for his outbursts at the grievance feedback and grievance appeal meetings was outside the range of reasonable responses. The Claimant was shocked to find that Mr Perks had appeared to solicit anonymous statements from the Claimant’s colleagues touching on his health and other personal matters and was understandably concerned at the damage this would cause to his relationship with his peers. Dismissing the Claimant for his outburst at this meeting was outside the range of reasonable responses to his conduct. A reasonable employer would have reflected on the impact that this information was likely to have on the Claimant and considered mitigation for the Claimant’s behaviour.

[140]While the Claimant lost self-control in the disciplinary feed-back meeting with Mr. James, he did so at the point where Mr. James threatened to suspend him for having consulted a lawyer about his employment rights. The notes of the meeting and recording show that he shouted after that point. A reasonable employer in the Respondent’s position would not have dismissed an employee who lost control in such circumstances. Mitigation for the Claimant’s behaviour would have been considered by a reasonable employer.

[141]I have considered the size of the Respondent’s undertaking. Although it employed one member of HR staff only and she had other responsibilities, it had detailed and comprehensive policies. Their size and resources do not excuse the unfairness in this case.

[142]I find therefore that the Claimant was unfairly dismissed by the Respondent within Section 98 of the Employment Rights Act 1996.

[143]I will determine compensation at the remedy hearing. Wrongful dismissal

[144]The Claimant brings a breach of contract in respect of his dismissal without notice. I do not find that the Claimant committed an act of gross misconduct which entitled the Respondent to terminate his contract summarily. He used strong language and shouted while in stressful circumstances in the hearings with Mr Perks and Mr James. The single incident of shouting at Ms Farmer does not constitute gross misconduct entitling the Respondent to terminate his contract without notice. The customer incidents were too far away in time. His behaviour towards Ms Coward whilst escalating did not yet rise to the threshold of gross misconduct justifying summary dismissal. REMEDY JUDGMENT .(1) The respondent shall pay to the claimant as compensation for wrongful dismissal the sum of £1,800.94 This is based on one month’s loss of net pay.

(2) The respondent is ordered to pay to the claimant as compensation for unfair dismissal in the sum of £9,052.80 calculated as follows: Basic Award £3,150.00 Compensatory Award Loss of Statutory Rights to long notice £500.00 Loss of earnings from 09.09.19 to 09.12.19 to reflect Polkey reduction based on 13 weeks loss of earnings at £415.60 net earnings per week Total: £9,052.80 TOTAL £10,853.74

(3) Pursuant to Rules 74- 78 and 84 of the Employment Tribunal Rules of Procedure 2013, the claimant is ordered to pay to the respondent a contribution towards the costs of the breach of contract claim in relation to overtime pay summarily assessed in the sum of £2,742.50.

(4) For the avoidance of doubt, the respondent is ordered to pay to the claimant the net total sum of £8,111,24 subject to any deduction to be made by the respondent to the Secretary of State for Work and Pensions under The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 SI 1996/2349.The claimant was in receipt of Contribution Based Jobseeker’s Allowance between 30.08.19 to 20.02.20. No deduction is to be made in respect of the period between 30.08.19 and 09.09.19 as that period relates to the claimant’s wrongful dismissal claim. JUDGMENT on remedy and on costs having been sent to the parties on 19th November 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:

Discussion and conclusions

[1]This has been a hearing by video with both parties remote. A face-to-face hearing was not held as it was not practicable in light of public health restrictions. The orders made on remedy and costs are at paragraphs 2 to 5 below.

[2]The respondent shall pay to the claimant as compensation for wrongful dismissal the sum of £1,800.94. This is based on one month’s loss of net pay.

[3]The respondent is ordered to pay to the claimant as compensation for unfair dismissal in the sum of £9,052.80 calculated as follows: Basic Award £3,150.00 Compensatory Award Loss of Statutory Rights to long notice £500.00 Loss of earnings from 09.09.19 to 09.12.19 to reflect Polkey reduction based on 13 weeks loss of earnings at £415.60 net earnings per week Total: £9,052.80 TOTAL £10,853.74

[4]Pursuant to Rules 74- 78 and 84 of the Employment Tribunal Rules of Procedure 2013, the claimant is ordered to pay to the respondent a contribution towards the costs of the breach of contract claim in relation to overtime pay summarily assessed in the sum of £2,742.50.

[5]For the avoidance of doubt, the respondent is ordered to pay to the claimant the net total sum of £8,111,24 subject to any deduction to be made by the respondent to the Secretary of State for Work and Pensions under The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 SI 1996/2349.The claimant was in receipt of Contribution Based Jobseeker’s Allowance between 30.08.19 to 20.02.20. No deduction is to be made in respect of the period between 30.08.19 and 09.09.19 as that period relates to the claimant’s wrongful dismissal claim. Liability hearing and application for costs

[6]On 12th March 2021, I issued my reserved judgment on liability following a remote hearing which took place by video from 27th to 29th January 2021. At the point when cross-examination ended, the claimant who was a litigant in person had been too unwell to continue the hearing. There was an outstanding application from the respondent for costs in respect of the breach of contract/unlawful deduction from wages claim. This claim was withdrawn in part by the claimant on the first morning of the hearing so far as it related to sick pay, salary increase and unpaid bonus. The remaining elements of this claim which concerned unpaid overtime were struck out on the first day of the final hearing on the ground that it had no reasonable prospect of success pursuant to Rule 37(1)(a). The claimant became unwell on the final day of the hearing and I reserved my decision. I sought written submissions from the parties on the questions of liability and costs only. At that point, and given the state of the claimant’s health, I concluded that the question of remedy should it arise could be left to an oral hearing when the matter of costs would be determined. The claimant was also asked to provide information on his means.

[7]I found that the respondent had unlawfully wrongfully and unfairly dismissed the claimant. I made a number of adverse findings in my judgement on liability on the claimant’s behaviour. As set out below, I have taken those findings into account in deciding the compensation which the respondent should pay the claimant and in particular on the question as to the amount of compensation which it is just and equitable which the respondent should pay to the claimant.

[8]The claimant had also brought a claim for breach of contract/unlawful deduction from wages in relation to salary increase, sick pay, bonus and unpaid wages of £31,000. At the start of the hearing on 27th January, the claimant voluntarily withdrew the first three aspects of that claim and they were therefore dismissed on withdrawal. After hearing submissions from the parties, I struck out the claim in so far as it related to unpaid wages under Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013 as having no reasonable prospect of success. Remedy judgment

The issues

[9]Before the hearing, I asked HMCTS staff to write to the parties requesting supporting evidence on remedy and indicating that the issues which would be considered at the remedy hearing included:a. Polkey. This means that there may have been a chance that the claimant would have been fairly dismissed if a fair dismissal procedure had been followed; and

b. Contributory conduct This means did the claimant cause or contribute to his dismissal by blameworthy conduct? The documents and oral evidence

[10]I had the benefit of the claimant’s witness statement and documents totalling 63 pages. The claimant gave oral evidence and was cross-examined. The respondent provided witness statements from Mr. Stuart James, director. Mr. James also gave oral evidence and was crossexamined. The claimant had prepared a schedule of loss. The respondent provided a copy of the claimant’s payslip for March 2019.

The hearing

[11]I explained the Tribunal process and the issues which the Tribunal would consider and invited Counsel for the respondent also to assist the claimant by explaining the legal issues which the Tribunal would consider and how he would approach these. I ensured that there were breaks where possible to enable the claimant to rest and time was allowed for him to prepare his oral submissions in light of the guidance given. Oral evidence and submissions on remedy The claimant

[12]The claimant acknowledged that his behaviour during the events leading up to his dismissal was relevant to the question of remedy but suggested that his poor behaviour had been triggered by a number of factors. He had been in remission from cancer and was coping with bereavement following the death of his father. Additionally, any volatile behaviour on his part had been caused by the respondent’s treatment of him and in particular by its failure to address his grievance and its lack of regard for his health combined with its willingness to use his health issues against him for example apparently discussing his health with his colleagues. He had not been asked for his side of the story by the respondent.

[13]His statement further said that he had not been able to obtain work either in his former field of the motor industry nor in the new field of therapy and counselling where he aspired to work having gained relevant qualifications including a Psychology degree. He asserted that he had not relied on state benefits and had instead lived off his savings. He had developed arthritis had had some orthopaedic surgery in September 2020 and awaited further surgery.

[14]The claimant’s schedule of loss included claims for £500 for loss of statutory rights and £3,020 for salary increases and £879 for bonus due. He claimed future losses for 9.5 months from the hearing date. He said that his employment prospects were poor and exacerbated by the pandemic. He also claimed sums for his company car and pension contributions.

[15]During the hearing, the claimant said that his statement was incorrect. He had in fact received Jobseeker’s Allowance between 30th August 2019 to 20th February 2020. I found that he did not adequately explain why he had inaccurately stated that he had not relied upon state benefits when he had received benefit for almost six months.

[16]On the question of costs, the claimant said that he had not understood that he had brought two separate claims for breach of contract and unfair dismissal. He claimed that Employment Judge Glennie’s Case Management Orders dated 5th November 2019 did not refer to a separate claim. He said that he had found the Tribunal process confusing and should not be liable for costs. The respondent

[17]Mr. James’ evidence was that the claimant would have been dismissed had it followed a correct procedure. He said that the claimant’s poor behaviour and lack of self-control had affected his line manager, Ms Heidi Coward. The evidence of Ms. Coward that she was scared of the claimant and felt physically threatened by him had not been challenged by the claimant at the hearing. Although Mr. James accepted that the respondent should have carried out a more detailed investigation, this would not have changed the outcome. At the hearing, the claimant had displayed aggressive and volatile behaviour and a loss of self-control. In the circumstances, and any further discussion with the claimant would not have made any difference.

[18]For the respondent, it was also submitted that it would have faced the risk of a constructive dismissal claim from Ms Coward had it failed to deal with the claimant’s behaviour.

[19]The respondent disputed that it had any obligation to pay bonuses or to give salary increases. These were a matter of discretion for the respondent. The claimant had requested payment of a bonus and a salary increase during his employment and had those requests turned down. It submitted that while there had not been a complete failure of mitigation by the claimant, there had been some failure to mitigate as there appeared to be gaps in the claimant’s job applications.

[20]In relation to Polkey and contributory fault, the respondent submitted that the claimant’s continued volatile behaviour made his dismissal inevitable at some point. His employment had been marked by his constant inability to accept any responsibility for his own behaviour and his always attributing blame for workplace disputes to others. This meant, the respondent said, that there should be a 75% to 100% reduction to any award to take account of the claimant’s conduct. The respondent accepted that it had failed to interview Ms. Coward during the disciplinary process. Had she been interviewed; however, it was highly improbable that the claimant would have been exonerated of the charges against him. At this point in his employment, the claimant’s angry behaviour was escalating and his dismissal was inevitable. The Law Basic award

[21]The basic award for unfair dismissal is calculated on the basis of a week’s pay as set out in Chapter 2 of Part XIV of the ERA 1996. Compensatory award

[22]The compensatory award is according to s.123 of the ERA 1996 “such amount as the tribunal considers just and equitable in the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer)”. Accordingly, the purpose of compensation for unfair dismissal is ‘is to compensate and compensate fully, but not to award a bonus’; per Sir John Donaldson in Norton Tool Co Ltd v.Tewson

[1973] WLR 45

. Neither is compensation designed to punish the employer. Mitigation

[23]Tribunals are required to consider in relation to the compensatory award, the extent to which the claimant has mitigated any losses he suffered due to the acts of the respondent. The claimant is expected to take reasonable steps to blunt the effect of any losses suffered as a consequence of his dismissal. The burden for approving failure to mitigate is on the respondent; Fife v. Scientific Furnishing Ltd [1989]IRLR 331. If the claimant has failed to take a reasonable step, the respondent must prove that the claimant acted unreasonably; Wright v. Silver Line Care Caledonian Ltd

UKEAT/0008/16

. It may be reasonable for the claimant to attempt to minimise loss by retraining; Orthet Ltd v. Vince-Cain UKEAT/2004/0801_03_12-8 Polkey

[24]S.98A(2) ERA 1996 requires the Tribunal to consider whether had a fair procedure been adopted, the claimant would have been dismissed in any event. This is necessarily a speculative exercise as acknowledged by Pill LJ in Scope v Thornett

[2006] EWCA Civ 1600

at paragraph 36: “Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and Tribunals are very familiar with making speculations based on the evidence they have heard. The Tribunal’s statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation”.

[25]In considering Scope in Software 2000 Ltd v Andrews

[2007] IRLR 568

, Mr. Justice Elias as he then was said that that case: “emphasises that the task is for the Tribunal to identify and consider any evidence which it can with some confidence deploy to predict what would have happened had there been no unfair dismissal. To fail to do this could lead to overcompensating the employee, which would not be a just outcome… The question is not whether the Tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice. It may not be able to complete the jigsaw but may have sufficient pieces for some conclusions to be drawn as to how the picture would have developed.

[26]The principles to be applied can be found in paragraph 54 of Software 2000 Ltd v Andrews

[2007] IRLR 568

. In considering Polkey. In summary, having considered the evidence, Tribunals may determine that one of the following four outcomes applies-(i) that if a fair procedure had been followed, the employer would have been able to show – the onus being firmly on the employer – that on the balance of probabilities that the dismissal occurred when it did in any event,

(ii) that there was a chance of dismissal but less than 50% in which case compensation should be reduced accordingly,

(iii) that employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O’Donoghue case; or

(iv) that employment would have continued indefinitely.

[27]In O’Donoghue v Redcar and Cleveland BC

[2001] IRLR 615

, the Court of Appeal held that a Tribunal was entitled to find on the evidence that an employee unfairly dismissed on by reason of sex discrimination would have been fairly dismissed for misconduct six months later in any event because of her antagonistic and intransigent attitude. Contributory conduct: basic award

[28]The basic award may be reduced where the tribunal “considers that any conduct of the complainant before the dismissal… was such as it would be just and equitable to reduce or reduce further the amount of the award to any extent”; s.122 ERA 1996. Conduct which was not known to the employer and cannot have caused or contributed to this to the dismissal can still be taken into account in relation to the basic award; Parker Foundry Ltd v. Slack

[1992] ICR 302

[29]This entails a three-stage test: first an identification of the conduct, second an assessment of whether the conduct was blameworthy and third, an assessment as to whether it is just and equitable to reduce the basic award. In identifying the conduct and considering whether or not it was blameworthy. The focus must be on the conduct and not on the respondent’s assessment of it; Singh v. Glass Express Midlands Ltd [2018]

UKEAT/0071/18/DM

Contributory conduct: compensatory award

[30]Where the tribunal “finds that the [act] was to any extent caused or contributed to by the action of the complainant, [the tribunal] shall reduce the amount of the compensatory award by such proportion as it considers just and equitable”; s.123(6) ERA 1996. Only events which take place before dismissal can render it just and equitable to reduce the compensatory award; Soros v Davison

[1994] ICR 590

[31]The claimant’s conduct must be ‘culpable or blameworthy’. Case law establishes that conduct must be foolish or perverse or unreasonable in the circumstances; Nelson v BBC (No.2)

[1980] ICR 110

. Misconduct does not have to rise to the level of gross misconduct for a deduction to be made for contributory fault; Jagex v McCambridge

[2020] IRLR 432

[32]In considering whether or not a reduction should be made under s.123(6), the Tribunal must consider “the actual conduct of the claimant and whether that conduct, if blameworthy, caused or contributed to the actual dismissal. (S.123(6)) does not direct tribunals to answer the different, counterfactual question of whether the respondent would have dismissed the claimant for that conduct if it had acted properly, reasonably or fairly. “; Renewal UK Services Ltd v Payment

UKEAT/0109/21/DA

Conclusions and reasons on remedy Wrongful dismissal

[33]The claimant was entitled to one month’s notice under his contract of employment. I ordered that the respondent should therefore pay the claimant the sum of £1,800.94 net pay. Given the shortness of this period, the question of mitigation did not arise. The effect was that the compensatory award does not begin until 9th September 2019. Unfair dismissal

[34]I first dealt with the claimant’s inclusion of heads of claim for bonus and pay rises and the question of mitigation. I found that he was not entitled to any sums for bonus or pay increases. I accepted the evidence of Mr. James which was consistent with the respondent’s position at the liability hearing that those payments were entirely discretionary. I noted that the claimant had requested both payments in the past and that they had been refused. I also noted that part of the respondent’s consideration includes taking into account the views of the employee’s line manager. I thought it unlikely that Ms. Coward would have supported such requests.

[35]The respondent had failed to show on balance that the claimant had not made efforts to mitigate his loss. The claimant had looked for work in two areas: the motor industry and in the health sector. He had obtained a degree in Psychology and an array of counselling and therapy qualifications. He had applied for a wide range of positions in both sectors and across two geographical areas having moved home. The positions applied for by the claimant included entry-level positions. I was not persuaded by the respondent’s argument that there were significant gaps in the claimant’s efforts to look for work. I accepted the claimant’s evidence that he had registered with a number of job search websites and continued to apply for vacancies throughout this period not all of which were displayed on the website. I also took account of the fact that the claimant was looking for work during the pandemic which significantly limited job opportunities given that many employers furloughed staff rather than recruiting new staff. Basic award

[36]The claimant was born on 14th September 1959. He was employed by the respondent between 1st March 2015 and 9th August 2019 which produced a basic award of £3,150. Polkey

[37]I found that there was evidence of sufficient reliability relating to the claimant’s behaviour to require me to engage in the Polkey exercise. I based this on the large number of adverse findings in the liability judgment on the claimant’s behaviour. I considered the application of each of the four outcomes in the Software 2000 Ltd v Andrews

[2007] IRLR 568

in turn. I did not consider on the balance of probabilities that had a fair procedure been followed that the claimant would have been dismissed in any event. It is likely that a reasonable employer would have taken into account the claimant’s concerns about his health and the impact on his health of working long hours which might have been articulated during a fair process and that he would have received a final written warning rather than a dismissal.

[38]Turning to the second possible outcome in the Andrews case I did not think that it could be established that there was a chance of dismissal at that stage. I think that there was strong mitigation in terms of the claimant’s health concerns. I note that he is a cancer survivor who might therefore be expected to have continuing concerns about his health. A further mitigating factor was the respondent’s discussions with the claimant’s colleagues which might be expected to have an unsettling effect.

[39]I found, however, on balance, moving to the third outcome in Andrews that the claimant would have been dismissed within a further four months for other instances of conduct or flashpoints which would have led to the disciplinary process being invoked. His poor behaviour in the workplace predated recent events. There is evidence that the claimant from the early days of his employment by the respondent struggled to see others’ points of view and easily lost his temper when there were disagreements. I note that he had had flashpoints with colleagues as far back as 2016. A number of managers had felt the need to speak to him about his attitude. The claimant accepted that he could be overly defensive and abrupt.

[40]His behaviour was deteriorating and was increasingly extreme. He showed himself to be unwilling to accept Ms. Coward’s authority on many matters even on the reimbursement of the cost of buying low value items of work clothing. He told Mr. Perks that he thought the working relationship between he and Ms. Coward had completely broken down.

[41]At paragraph 36 of the liability judgment, I noted Ms Coward’s oral evidence in which she said that he spoke to her more than once in an aggressive tone and that during telephone conversations she had to threaten to end the call. She also noted in her oral evidence that she considers that the claimant’s volatile behaviour towards her should have been addressed much earlier. (I noted a typographical error in my judgement here which referred to 18th March 2021 and which should have been 18th of March 2019).

[42]I found in paragraph 40 of the liability judgment that there was a pattern whereby the claimant deflected criticisms of his behaviour onto others. An example of that was on 26th April 2018 where the claimant undermined Ms Coward’s presentation to a large group of staff which led a colleague to become angry and challenge the claimant’s behaviour. This provocation did not however excuse the claimant’s total loss of self-control. The claimant showed no insight into his own inappropriate behaviour in a very public work setting and focused entirely on the behaviour of his colleague. It was clear however, that the claimant notwithstanding provocation had entirely lost control of himself in a work setting.

[43]From paragraph 53 onwards of my liability judgement, I noted the claimant’s increasingly disproportionate reaction to emails from Ms Coward. Despite clear warnings from senior managers, for example, Mr. Frank Harvey as discussed in paragraph 56 of the liability judgment, the claimant failed to check his behaviour.

[44]I found that by the beginning of 2019, the relationship between the claimant and his line manager, Ms Coward had deteriorated, and this had led to a further escalation in his poor behaviour. For the claimant, he said that his behaviour had been caused by the respondent’s failure to adjust his working hours to avoid his having to travel excessive distances to customers premises. I also accept that the respondent’s obtaining anonymous statements from a number of colleagues was distressing to the claimant. This is all context for but cannot excuse his progressively intemperate behaviour in work settings. Instances of poor behaviour by the claimant predated the grievance and disciplinary process.

[45]Not only did he lose his temper during formal meetings to do with his grievance, but he also lost his temper during a telephone conversation with Miss Farmer when he shouted at her and called her a liar. This demonstrated that by this time, the claimant found it impossible to exercise selfcontrol in workplace interactions. I was therefore satisfied that there was reliable evidence that the claimant would probably have been dismissed.

[46]I noted that the disciplinary process including the appeal stage moved quickly as might be expected in an organisation of the respondent’s size. For instance, the claimant was written to during his sickness absence between 25th March and 19th July 2019. A disciplinary meeting took place promptly on 8th August 2019 shortly after his return. A disciplinary appeal hearing took place in the claimant’s absence on 29th August 2019.

[47]My decision was therefore that the claimant would not have remained employed indefinitely by the respondent but that his employment would have been brought to an end by other instances of his confrontational attitude. I held therefore that applying Polkey and the Andrews outcomes that the claimant would have been dismissed within four months for further instances of unacceptable conduct. Contributory conduct

[48]Given the close overlap between Polkey and contribution, my decision was that it would not be just and equitable to make a further percentage reduction for contributory conduct. This would however I consider have been at least 75%. Compensatory award taking into account Polkey

[49]Accordingly, this meant that after the four-week contractual notice period, the claimant suffered a net loss of £415.60 per week for 13 weeks (that is from 9th September 2019 to 9th December 2019) making a total net loss of £9,052.80 including the claimant’s medical expenses policy valued at £15 per month. Total unfair dismissal award

[50]This resulted in a total award for the unfair dismissal claim of £10,853.74. Costs judgment

[51]The claimant was ordered to pay to the respondent a contribution towards the costs of the breach of contract claim in relation to overtime pay summarily assessed in the sum of £2,742.50.

[52]The background to the award of costs was as follows: First Employment Tribunal claim

[53]The claimant’s first claim (2201491/2019) which was received on 17th April 2019 was brought while he was still employed by the respondent. He described the type of claim as “unfair treatment, bullying and discrimination by perception. Pay and bonus was refused due to sick time off following an attempt to raise an informal grievance”. When asked to specify the compensation or remedy sought, he replied: “ I have worked out that since starting with the company I have worked over 2000 unpaid hours beyond my contractual hours which is about a year’s salary of around £31,00. I was not paid for the last sick period and the current one.”

[54]The Tribunal wrote to the claimant on 29th June 2019 to say that it had accepted his claim as a claim for “unpaid pay and bonus and listed it accordingly”.

[55]The respondent’s grounds of resistance which were dated 16th July 2019 denied liability. The respondent said that the claimant was not entitled to overtime as remuneration for any additional hours of work over his contractual 40 hours per week had to be agreed with the claimant’s line manager. No such agreement had been reached and the claimant had not in fact been paid any overtime during his employment. The claim to bonus was also resisted on the ground that the respondent’s bonus scheme was non-contractual and discretionary.

[56]A copy of the claimant’s principal statement of terms and conditions was attached to the grounds of resistance. That document said that the hours of work were 40 hours per week but that flexibility was required. The principal statement was supplemented by an employment agreement which was also attached to the grounds of resistance. The employment agreement provided as follows in relation to the claimant’s hours of work: “Your official hours of work are as detailed in your Principal Statement. Due to the nature of your position with the RMIF however you are expected to be flexible and to work any additional hours that are reasonably required to fulfil the responsibilities of your job or meet the needs of the business with further remuneration as agreed with your line manager,”

[57]The respondent said that the claim was vexatious and unreasonable and that it would seek legal costs. On the same day as the grounds of resistance were submitted, the respondent wrote to the claimant inviting him to withdraw the claim. The letter said that the claimant was aware that he was not entitled to overtime pay as set out in his contract. In any event, any such overtime would have to be authorised by his line manager and no such authorisation had been provided. He was also warned that the respondent would make an application for costs. Second Employment Tribunal claim

[58]The claimant’s second claim (2203115/2019) for unfair dismissal was received on 21st August 2019. He claimed unfair dismissal, notice pay, holiday pay and arrears of pay. The respondent resisted the claims and said that the claimant had been dismissed for gross misconduct and that all sums due to the claimant had been paid to him. Preliminary hearing on 5th November 2019

[59]A preliminary hearing to identify the issues and to make case management orders was first listed for 2nd October 2019. That hearing was postponed until 5th November 2019 so that both claims could be considered and case managed together. At that hearing, Employment Judge Glennie clarified that there were three claims: unfair dismissal, wrongful dismissal (notice pay) and unlawful deduction from wages. In relation to the latter claim, he indicated that this claim “will involve consideration of whether the respondent failed to pay remuneration that was due to the claimant”. Employment Judge Glennie ordered that the claims be heard together. He further ordered that the respondent should make any request for further information about the claims and the claimant respond by 19th November 2019 and 3rd December 2019 respectively. Claimant’s response to request for further and better particulars of unpaid wages claim

[60]The claimant provided further information to the respondent and to the Tribunal on 21st November 2019. This information however only consisted of a schedule of loss. The claimant did not identify the contractual basis for his claims for unpaid overtime, bonus and sick pay. The respondent wrote to the claimant on 25th November 2021 in plain language thus: “Your case is that you are owed wages. Our client’s case is that they have paid you everything due and owing under your contract. If you are relying on a written document in support of your case you need to tell us what that document is. Alternatively, if you are relying on an oral promise you need to tell us details of that promise i.e. when it was made, who by etc and what was said. As things stand we do not know why you say you are owed money. For example you say as follows: ‘Contract states that position was subject to moving to Hampshire’. We do not understand to what document you are referring. Please send us a copy and explain why this relates to unpaid overtime. You also say in relation to sick pay and bonuses ‘see company’s criteria and my work diaries’. Again this is insufficient evidence. It is not for us to work out your case. You need to set out the legal basis upon which you are entitled to a pay rise and bonus etc” Claimant’s acceptance that there was no contractual basis for his unpaid overtime claim

[61]The claimant did not engage with the substance of the respondent’s email to him. The respondent wrote to the Tribunal also on 25th November 2019 saying that the claimant had failed to provide further and better particulars in relation to his claim for unlawful deduction of wages most notably the contractual evidence he relied on for his claim for £31,000 outstanding wages. The claimant responded to the Tribunal and the respondent on at 12.21 on 25th November 2019 saying “the documents that support my claim are already in the hands of (the respondent)”. Later that day at 13:26, he sent a second email to the respondent and the Tribunal as follows: “My case, as stated in the ET1 and at the preliminary hearing, is for unfair treatment, bullying, malicious withholding of pay rise and bonus and subsequent unfair dismissal, for taking legitimate time off sick, and following my attempts to put forward a grievance. The calculation for unpaid overtime, as detailed in my statement (my emphasis) is not in my contract, and I have never stated it was. The documents I refer to would support the many extra hours worked whilst doing my duties. This was requested by way of compensation of the initial ET1 as it was asked for, and before I was unfairly dismissed”

[62]The claimant therefore accepted in November 2019 that there was no legal basis for his claim to unpaid overtime.

[63]On 17th December 2019, the respondent wrote to the Tribunal to say that the claimant had not clarified the basis of his claim for unlawful deduction of wages: “The claimant’s case is a significant claim for outstanding wages (over £40,000). At present our clients are being severely disadvantaged and prejudiced by the claimant’s lack of co-operation.” EJ Glennie’s further case management orders

[64]On 2nd January 2020, Employment Judge Glennie advised the parties that he considered that the claimant had not provided sufficient particulars of his claim for unpaid wages. He made detailed case orders requiring the claimant to provide in summary, the contractual provisions he relied upon, breakdowns of the claims for £31,000 for additional hours and £1,110 for pay rise and bonus and details of the basis on which he claimed pay rises and bonus with supporting documentation by 15th January 2020. Respondent’s strike out application warning dated 3rd January 2020

[65]On 3rd January 2020, the respondent wrote to the claimant again stating that he had failed to comply with Employment Judge Glennie’s orders and warning him that should he fail to cooperate and address each of the three orders made that it would apply to strike out his case for failure to follow the case management orders. The claimant responded but did not provide the specified information stating only that “outstanding pay is an aspect of my claim”.

[66]The respondent replied on 7th January 2020: “ You simply have not answered (EJ Glennie’s) request in relation to points 1,2 and 3. In these circumstances we ask you for one final time to comply with the Orders failing which we will apply to strike out your claim for unpaid wages. In summary you need to set out the contractual document that you say entitles you to payment for overtime. If it was an oral agreement, you need to state who it was with, when and what words were used. This is very clear from point 1 of Judge Glennie’s order. If you are unable to do this because there was no such contractual agreement, you need to say so. Similarly, in relation to point 3 of Judge Glennie’s order you need to refer to the relevant document and the words used etc. You have also failed to provide any breakdown of your additional hours in any event, see point 2. We will not enter into any further correspondence on this matter and if you do not comply we will simply make an application to strike out your claim,”

[67]The claimant replied on 9th January 2019 enclosing a statement where he said: “There is no contractual information for the provision of payment for overtime. However, as stated it was anticipated from the start of my contract that extra hours would be worked…. Conversations and correspondence with my line managers (my emphasis) though not agreed for actual overtime pay, will show that the extra hours worked were expected and indeed completed”…. It was also discussed within these conversations the issue of sick pay, pay rise and bonus. HC clearly states that ‘this was at the discretion of SJ and, that he does not have to justify the reasons for not paying overtime, bonus or sick’”

[68]His statement was accompanied by further documents and voice recordings of various meetings. The respondent wrote to him also on 9th January 2020 to say that “It is not for us to wade through voice recordings and documentation to see whether we can establish what contractual claims you are relying on. You must do that task and then send out the contractual terms, i.e. who said what to whom and when”.

[69]The claimant sent further emails to the Tribunal and the respondent on 9th January 2020 to say that it was up to the respondent to read the documents and to listen to the recordings which he had provided. On 10th January 2020, he sent a further document to the respondent. The document which ran to 5 pages did not identify a contractual basis for the unpaid wages claim. The respondent wrote to the claimant pointing out this omission. The claimant replied on 10th January 2020 saying: “… I do not have any contractual documents for entitlement for pay regarding the extra hours… (My emphasis) The contract agreement is unclear on this issue of extra pay as it was not anticipated that it would be challenged on…. This aspect of my grievance led to my dismissal, and for which has been accepted by the courts for inclusion of the case “ Respondent’s strike out application dated February 2020

[70]On 6th February 2020, the respondent notified the claimant that it had applied to the Tribunal to strike out his claim. On 11th February 2020, the respondent sent a copy of the bundle for the unfair dismissal claim to the claimant and confirmed that as it was applying to strike out that part of his claim which related to unpaid wages, it had not included documents relating to unpaid wages. The claimant replied saying that he was pursuing all aspects of his claim and objected to the strike out application. He asked the respondent to include documents including his work schedule and diary for 2018 to 2019 and his monthly returns for 2018 and 2019 to show the mileage and distances completed.

[71]The respondent wrote to the claimant on 14th February 2020 saying: “ As we have repeatedly said, we are not prepared to embark on a time-consuming exercise relating to your claim for unpaid wages because we have applied to strike out your claim for failing to comply with the Court Order. We challenged your claim for unpaid wages at the very beginning in our ET3 response. If you look at it we said it was unreasonable and vexatious and should be struck out.” Preliminary hearing to consider respondent’s strike out application

[72]On 21st February 2020, a preliminary hearing was listed for 7th April 2020. The preliminary hearing was to determine “whether the claimant’s complaint of unlawful deduction from wages should be struck out on the grounds that he has not complied with the Tribunal’s orders to provide further information and/or that it has no reasonable prospect of success”. In the event, that hearing did not take place due to the lack of a judge and the dislocation caused by the pandemic. Claimant’s awareness that there were separate unfair dismissal and unpaid overtime claims

[73]A series of emails took place between the claimant and the respondent from 14th February 2020 to 17th March 2020 regarding his attempts to obtain copies of documents from the respondent. It is clear from this correspondence that the claimant was aware that he was pursuing separate claims for unfair dismissal and for unpaid wages. The respondent’s email of 14th February 2020 at 9.30am declined to provide copies of documents relating to the unpaid wages claim unless the claimant could show that they were also relevant to the unfair dismissal claim. The claimant’s replies show that he clearly knew that he was pursuing separate unpaid wages and unfair dismissal claims. For instance, on 14th February 2020 at 11.12 am, he wrote: “ As for striking out that part of the claim, there are elements for which are relevant to the unfair dismissal”

[74]He wrote to the Tribunal on the same day at 4.24pm also distinguishing between the separate claims which he was pursuing thus: “I have received several emails from the respondents’ solicitors indicating that part of my claim is in the process of being struck out, and that they will not respond to anything related to this. They are also delaying sending documents requested regarding my claim for unfair dismissal.”

[75]In further correspondence with the respondent, the claimant repeatedly referred to needing documents to support his unfair dismissal claim – see his emails dated 24th February 2020 at 11.41 am, 6th March 2020 at 2.32 pm and 16th March 2020 at 16.11.

[76]On 18th March 2020, the claimant wrote to the respondent. The information provided still did not contain the information and documents specified by Employment Judge Glennie. He supplied copies of emails which had passed between him and the respondent relating to the hours he had worked and recordings of grievance meetings and hearings. He not only failed to identify the contractual basis for his claim, but enclosed a witness statement which stated: “ Over dozens of emails sent to MILS I have constantly stated the reasons of my claim and (my emphasis) I have never claimed to have had a contract, written or verbal, to say that I would be paid overtime.”

[77]The claimant therefore accepted again in writing that he had no basis to pursue a claim against the respondent for contractual overtime. In his statement he quoted selectively from his terms and conditions of employment failing to cite the provision which stated that prior authorisation was required from his line manager in order to be paid overtime. Statement from respondent’s legal representative

[78]Mr. Baylis submitted a statement in support of the respondent’s application to strike out the claimant’s claim for unlawful deduction from wages on two grounds, first, on the basis that the claimant had failed to comply with Employment Judge Glennie’s orders and second, on the basis that this claim had no reasonable prospect of success. Strike out of breach of contract/unlawful deductions claim re unpaid overtime

[79]Paragraphs 17 to 19 of my liability judgment summarise my decision to strike out the claimant’s breach of contract/unlawful deductions from wages claim for £31,000 of unpaid overtime under Rule 37(1)(a). At the hearing, the claimant accepted orally as he had on at least four occasions in writing as described above that his employment agreement did not contain any term entitling him to be paid overtime in the absence of agreement from his line manager. He could not provide any evidence of a verbal agreement that he was entitled so to be paid. He sought to pursue a convoluted argument that his contract did not say in terms that he would not be paid for additional hours. I rejected this argument for the reasons given orally at the time and set out in summary form in my liability judgment. Application by the respondent for costs

[80]The respondent gave notice of its intention to seek costs relating to the breach of contract/unlawful deductions claim relating to overtime on the final morning of the hearing on 29th January. The claimant was too unwell to continue with the hearing at this stage and I therefore asked for the parties to make written submissions on liability and costs. Submissions on costs Respondent’s submissions

[81]The respondent argued that from the outset it had shown that the claimant had no contractual entitlement to overtime, that it considered this claim to be vexatious and unreasonable and would seek its costs of defending this claim. It had put the claimant on notice of this by writing to him in plain language on 16th July 2019, inviting him to withdraw the claim and warning him again about costs.

[82]It submitted that the claimant had repeatedly and unreasonably failed to comply with Employment Judge Glennie’s orders to provide further and better particulars and to identify the contractual basis of his claim.

[83]In emails and in his own written statements including his witness statement for the preliminary hearing, the claimant had accepted that he had no contractual entitlement to overtime pay. For this reason, the Tribunal had struck out the claim as having no reasonable prospect of success, thereby engaging the Tribunal’s jurisdiction to make a costs order.

[84]The respondent submitted that the claimant had acted vexatiously. He had repeatedly been advised by the respondent that he had to identify the contractual basis for his overtime claim and had freely admitted there was none. His conduct had put the respondent to considerable expense.

[85]The respondent sought the following costs: - Invoice no.1 – breach of contract claim £825 (payment in full) - Invoice no.2 – strike out application £605 (payment in full) - Invoice no.3 – final hearing £4,250 (30% = £1,275) - Invoice no.4 – final hearing £4,500 (30% = £1,350) Claimant’s submissions

[86]The claimant relied on two main arguments. First, he argued in essence that he had not understood that he had brought a separate breach of contract claim in his first ET1. He said that in Section 8 of the ET1 form he had claimed “Unfair Treatment, Discrimination by Perception and Bullying, not Breach of Contract”. Under Section9.1 of the ET1 form which is headed ‘What Would You Want if your claim Is Successful?’ he ticked Compensation Only. Under Section

9.2 of ‘What Compensation or Remedy you seeking? Adding “I briefly laid out the many extra hours I worked. This was a remedy request for my claim”. In making oral submissions, he said that he was not bringing a separate claim for overtime but wished it to be part of the remedy for his unfair dismissal claim.

[87]His second argument was that Employment Judge Glennie merged both ET1s into one claim and that he understood this to be unfair dismissal only. He relied upon the respondent’s letter dated 16th July 2019 saying that it “refers to the claim as per ET1 April 2019 and not for the changed combined claim.”

[88]In support of this argument, the claimant said that the case management orders from the preliminary case management hearing did not refer to a breach of contract claim adding” “It merely stated I am to provide information about the claims and a timescale for procedure. Judge Glennie had my statement which explained my claim… If you look at your correspondence you will see it was yourselves that wanted to interpret this as a claim for breach of contract and so made it the case. I was merely responding to your letters and requested for particulars related to my claims not for breach of contract and for which the court confirmed. This is why I was confused and kept reiterating the reasons for my claim”.

The Law

[89]The Tribunal has the power to award costs under Rule 76(1)(a) of the 2013 Employment Tribunals Rules of Procedure 2013 where a party, in the opinion of the Tribunal, acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing or conducting proceedings or under Rule 76(1)(b) if any claim or response had no reasonable prospect of success. Costs are defined in Rule 74 as “fees, charges, disbursements or expenses”. The Tribunal’s discretion to award costs must be exercised judicially; Doyle v NW London Hospitals NHS Trust

UKEAT/0271/11/RN

[90]Where the Tribunal considers that any claim or response has no reasonable prospect of success, it is required to consider whether an award of costs should be made; Rule 76(1)(b). When the Tribunal is considering whether or not to make an award under this provision, it must focus on how things would have appeared to the party at the outset of the proceedings and any relevant stage in the course of proceedings; Radia v Jefferies International Ltd

UKEAT/0007/18/JOJ

. An award of costs can be made on the basis that a claim or response had no reasonable prospects of success even where the relevant party had a genuine belief in the merit of their claim or response. The Tribunal can take account of whether a claimant ought to have known that the claim had no reasonable prospect of success; Keskar v Governors of All Saints (CoE) School

[1991] ICR 493

[91]By virtue of Rule 77, no costs order may be made until the relevant party has had a reasonable opportunity to make representations in writing or at a hearing.

[92]In assessing the level of costs, the Tribunal may carry out a detailed assessment or make a summary assessment (in that case not exceeding an amount of £20,000); Rule 78(1). Any summary assessment should take into account the overriding objective.

[93]Rule 84 empowers but does not oblige the Tribunal to have regard to the relevant party’s means or ability to pay. The means of a paying party can be considered twice – first in considering whether an award should be made and secondly, where an award is to be made, in determining how much should be awarded. Means can include equity in a home, even if it is not readily realisable; Shields Automotive Ltd v Grieg

UKEAT/0024/10

. A Tribunal may make an award of costs against a party in circumstances where a party is currently unable to pay but may be able to meet their liability in due course; Vaughan v Lewisham LBC (No.2)

[2013] IRLR 713

(EAT).

[94]In considering whether or not to exercise its discretion to make an order for costs, the Tribunal must follow the three-stage approach set out in Hossaini v EDS Recruitment

[2020] ICR 491

. First, the Tribunal must determine whether or not its jurisdiction to make a costs award is engaged i.e. whether there has been unreasonable conduct or if a claim or response had no reasonable prospect of , second, it must consider the discretion afforded to it by Rule 76 and determine whether or not it considers it appropriate to make an award of costs in the particular case and finally, only then should it turn its mind to determine how much to award. It should set out its findings about the paying party’s ability to pay and say how this has influenced its decision to award costs or the amount of costs to be awarded; Jilley v Birmingham & Solihull Mental Health NHS Trust

UKEAT/0584/06

[95]The test for unreasonable conduct under Rule 74(1)(a) is a “wide and objective one” and it may include having an “unreasonably distorted perception of matters”; Brooks v Nottingham University Hospitals NHS Trust UKEAT.0246/18/JOJ.

[96]So far as litigants in person are concerned, the Tribunal should take care not to apply the standards expected of a legal professional; Solomon v University of Hertfordshire UKEAT.0258/18/DA. Unrepresented parties are however not to be spared from findings that their conduct of litigation was unreasonable; Liddington v 2Gether NHS Foundation Trust [2016]

UKEAT/0002/16

[97]Under Rule 78(1)(b) the Tribunal may determine the amount of the costs to be awarded by the application of the principles of detailed assessment which apply in the County Court. Conclusions and reasons on cost award ( i ) Was the jurisdiction to consider making a costs award engaged?

[98]The Tribunal’s jurisdiction to consider making a costs award in relation to the overtime claim was engaged by virtue of my decision on the strike out application namely that it had been unreasonable for him to bring this claim. This meant that I had next to consider whether or not it was appropriate to exercise my discretion to make a costs award. (ii) Was it appropriate to make a costs award?

[99]The second issue to consider was whether or not it was appropriate to make an award of costs in this case. The claimant not only had no reasonable basis to bring a claim for unpaid overtime, but this was signaled to him by both the respondent and Employment Judge Glennie on numerous occasions. He was informed by the respondent in clear and straightforward terms by letters on 16th July 2019 and on 25th November 2019 that his contract of employment clearly specified that overtime would only be remunerated with the approval of line managers and that no such approval had been given. He was invited to withdraw this claim and was warned that if he failed to do so the respondent would seek costs.

[100]The respondent’s letter to him dated 25th November 2019 which I reproduce again below could hardly have made things clearer “Your case is that you are owed wages. Our client’s case is that they have paid you everything due and owing under your contract. If you are relying on a written document in support of your case you need to tell us what that document is. Alternatively, if you are relying on an oral promise you need to tell us details of that promise i.e. when it was made, who by etc and what was said. As things stand, we do not know why you say you are owed money”.

[101]The claimant, however, simply refused to engage with the respondent’s letters and repeatedly wrote to it asking it to send him copies of documents relating to this claim such as records of the hours he had worked and printouts of his diary.

[102]I found that the claimant was fully aware at all times from the outset of his claim until the hearing on 27th January 2021 that there was no contractual basis whatsoever for him to bring a claim for overtime payments. Indeed, he confirmed in writing to the respondent on the following four occasions that he had no contractual right to paid overtime: 25th November 2019, 9th January 2020, 10th January 2020 and 18th March 2020. He also readily accepted verbally at the hearing on 27th January 2021 that there was no contractual basis for this claim. He failed to provide any evidence of a verbal agreement entitling him to such pay.

[103]In opposing the costs application, the claimant sought to argue that he had not been aware that he was pursing a breach of contract claim for overtime quoting selectively from the party and party correspondence and from Employment Judge Glennie’s case management orders. I found his explanations disingenuous. He is clearly an intelligent man and I found that he understood throughout that he was pursuing separate claims for unpaid overtime and unfair and wrongful dismissal for the following reasons.

[104]First, he said on his first claim form under the section 8 heading - type of claim “unfair treatment, bullying and discrimination by perception. (My emphasis) Pay and bonus was refused” This clearly showed that he understood that he was bringing a claim for pay that was due to him. The reference to pay could not reasonably be read as being confined to salary increases. It is noted that the claimant’s written submission for costs selectively quoted from Section 8 omitting the reference to pay and bonus by saying that he only claimed “Unfair Treatment, Discrimination by Perception and Bullying (sec 8), not Breach of Contract”. This was a distortion of what he actually wrote on his first ET1. The failure to include the words “pay and bonus was refused” was misleading.

[105]Second, on receipt of his first claim, the Tribunal wrote to the claimant on 29th June 2019 to say that it had accepted this claim as a claim for “unpaid pay and bonus and listed it accordingly”. The claimant did not challenge this characterisation of his claim.

[106]Thirdly, Employment Judge Glennie carefully explained the nature of the three different claims the claimant was bringing at the case management hearing on 5th November 2019 as unfair dismissal, wrongful dismissal (notice pay) and unlawful deduction from wages- (here the jurisdictions for unlawful deduction and breach of contract exactly overlap). In relation to the latter claim, Employment Judge Glennie indicated that this claim “will involve consideration of whether the respondent failed to pay remuneration that was due to the claimant”. This could have left the claimant in no doubt that he was bringing a claim for unfair dismissal and a separate claim for unpaid wages. He cannot reasonably have understood that he was only bringing an unfair dismissal claim in light of these clear case management orders.

[107]This can only have been reinforced by Employment Judge Glennie’s subsequent letter to the parties on 2nd January 2020 stating that he considered that the claimant had not provided sufficient particulars of his claim for unpaid wages. The claimant was specifically directed to provide a breakdown of his claims for unpaid wages including the £31,000 claimed for overtime and the contractual basis for those claims.

[108]Fourthly, the respondent wrote to the claimant warning him that it would seek to strike out his claim for unpaid wages as he had not complied with Employment Judge Glennie’s orders. It added, again in plain language: “In summary you need to set out the contractual document that you say entitles you to payment for overtime. If it was an oral agreement, you need to state who it was with, when and what words were used. This is very clear from point 1 of Judge Glennie’s order. If you are unable to do this because there was no such contractual agreement, you need to say so. Similarly, in relation to point 3 of Judge Glennie’s order you need to refer to the relevant document and the words used etc. You have also failed to provide any breakdown of your additional hours in any event, see point 2. We will not enter into any further correspondence on this matter and if you do not comply, we will simply make an application to strike out your claim.”

[109]By this point, the claimant can have been in no doubt that in addition to his unfair dismissal claim that he was pursuing a separate claim for unpaid overtime whether this was characterised as a claim for unlawful deductions from wages or for breach of contract (both claims being interchangeable so far as the claimant was concerned). The essence of this claim that is for unpaid overtime was clear.

[110]Fifthly, the claimant’s own correspondence to the Tribunal and to the respondent as described at paragraphs 73 to 75 acknowledged that he was bringing a separate claim for unpaid overtime.

[111]The claimant disputed this in his oral submissions saying that the overtime payments were part of the compensation which he sought from the respondent. Compensation cannot be sought however unless there is a valid legal basis or cause of action to do so. The claimant pursued his meritless claim for unpaid overtime right up to the final hearing despite clear and direct warnings from the respondent and Employment Judge Glennie that there was no legal basis for this claim. Defending this claim consumed much time for the respondent including providing copies of documents of no relevance.

[112]Throughout the hearing, the claimant made wide and unfocussed allegations about what he perceived to have been unfair treatment by the respondent throughout his employment. He was advised on a number of occasions that the Tribunal did not have jurisdiction to consider general allegations of unfair treatment and he was given appropriate guidance as to how he might put his case. I considered that while a degree of latitude should be given to the claimant as a litigant in person, he had been given adequate information by the respondent and by Employment Judge Glennie from an early stage on the need to identify a legal basis for his unpaid overtime claim. The claim was for a substantial amount of money that is £31,000. His pursuit of this claim in the face of such unambiguous warnings and his own frequent written acknowledgements that there was no legal foundation to this claim clearly justified the making of an award of costs.

[113]In reaching this decision, I have taken into account the information available to me about the claimant’s means. He was asked to provide information on his income and savings. The claimant wrote to the Tribunal on 12th March 2021 to say that his main asset was his home and that he had £1,900 in his current account and that he did not receive benefits. He also clearly had an undisclosed amount of savings as he said “I am currently living on my savings that were meant for my retirement in a few years from now and will eventually run out”. The Tribunal had asked him to specify the precise amount of his savings but he failed to do so. His failure to answer this direct question led me to conclude that his savings were not of a trivial amount.

[114]He later told the hearing in November 2021 that he had claimed benefits for a short period but had mainly lived on his savings and planned to live on his remaining savings for the next four years until he reached state retirement age. He had also sold his home and moved to a cheaper area. I therefore concluded that the claimant’s means taking into account his savings were not such as to prevent me from exercising my discretion to make an award of costs. (iii) How much costs should be awarded?

[115]The respondent had prepared a detailed schedule of costs. As the first two invoices related solely to the unpaid overtime claim and to the strike out application, I determined exercising my broad discretion that those costs should be awarded in full. The claimant pursued a claim which had no reasonable prospects of success. This claim was of substantial value namely £31,000 and therefore required significant preparation by the respondent. The respondent’s difficulty in doing so in the absence of the claimant’s response to case management orders and repeated correspondence can only have made the respondent’s task more demanding. I saw no reason, taking into account the claimant’s means as discussed below, why those costs should not be awarded in full.

[116]I was invited to award 30% of the respondent’s costs for the final hearing. This was on the basis that the respondent had had to prepare in full for the unpaid overtime claim and that the number of pages in the breach of contract bundle were roughly 30% of the size of the unfair dismissal bundle. I concluded that 15% of those costs should be awarded. I took into account the fact that pressure on Tribunal time and the dislocation caused to hearings by the pandemic meant that there had not been a separate preliminary hearing to consider the strike out application. It was not in accordance with the overriding objective to penalise the claimant for this. I also noted that many of the documents in the breach of contract document were print outs of salary records and cannot have taken as much time to prepare as sourcing more inaccessible and older documents for the unfair dismissal claim. I therefore awarded £637.50 and £675 accordingly making a total award of costs of £2,742.50.

[117]In reaching this decision, I took the claimant’s means into account. He had savings of an undisclosed amount but which were clearly sufficient to meet his living costs until retirement some 4 years hence without needing to apply for further social security benefits. He also implied that he had realised equity on the sale of his home and his move to a lower cost area.

The law

[1]I would first like to apologise to the claimant for my delay in making and sending this decision on his application for reconsideration and for costs. This was in part due to my illness in December followed by periods of annual leave in early December and over the Christmas and New Year holiday and my judicial responsibilities in a different jurisdiction. The claimant had requested written reasons for the remedy judgment issued on 19th November 2021. Those written reasons ran to 19 pages and were issued on 20th December 2021.

[2]The chronology of this matter is as follows. The liability hearing of the claimant’s unfair dismissal and breach of contract claims took place from 27th to 29th January 2021. Judgment was reserved. My judgment was issued to the parties on 22nd March 2022.

[3]A remedy hearing which included consideration of the costs application made by the respondent at the liability hearing took place on 15th November 2021. The judgment was issued on 19th November 2021. The claimant requested written reasons. As stated above, my written reasons for the remedy judgment were completed on 20th December 2021 and sent to the parties on the same date.

[4]On 17th November 2021, the claimant wrote to the Tribunal asking for a review of the remedy judgment and for his legal costs. His letter is copied below: “I will await for your full judgement notes so that I can carefully consider this in detail and then request from the court on what my options would be on challenging the outcome. I fell that the amount awarded does not seem to reflect what I have gone through considering I was found to be Unfairly Dismissed for many failures on behalf of the Respondent. In the meantime, so that I don’t far short of the deadline for any objections to the final judgement (which I recall for the hearing is 14 days), I write to inform of my intention to have the award reviewed under the following points:

The law

[1]My Statement and supporting documents explaining the background throughout

[2]The Respondent’s pressure to provide my Statement prior to the Courts Instructions [Letter 11th Nov]

[3]Following my questioning, Mr James admission and change of verbal statement regarding events at Southam Academy

[4]The fact the Respondent only ever produced dubious documents on dismissal 2 years after events and accusations made

[5]Under Polkey, I sort of understand you judged that I would have been unable to continue being employed due to the breakdown of working relationships with management.

[6]If this the reason my award was limited to a few months post dismissal then as I see it, they caused this situation and breakdown in relationship due to their unfair and unjust processes in dealing with grievances and not adhering to employment law regarding correct procedure for employees with health difficulties. * The schedule of loss amounted to over £91,000 capped at a year’s salary of £30,900. I was out of my depth in following your discussions regrading the award costs. Because of this, I was not aware or asked for my expenses which includes consulting a solicitor prior to the remedy hearing. Below are some of my expenses incurred. 6. Invoices for these legal services amounting to £1,215 [see 3 attachments]

[7]In addition, I incurred basic stationary costs [printer ink, paper etc.] since the start of around £165

[8]From what I can see, Loss of a company car was not included in the award

[9]I would kindly ask the court to please consider the award and include my above costs as I have had to pay the Respondents claim for their costs as awarded and so avoid any further legal proceedings.

[10]As mentioned above, I’ll await your full notes on the Judgement before moving forward.” The Law 5. Rules 70, 71 and 72 of the Employment Tribunal Rules of Procedure 2013 provide as follows: RECONSIDERATION OF JUDGMENTS Principles 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72. (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application. 6. Rule 70 therefore gives the Tribunal the power to reconsider a judgment where it considers it is in the interests of justice to do so. Rule 72(1) stipulates that the application to reconsider a judgment must be refused if the Tribunal considers there is no reasonable prospect of the original decision being varied or revoked; TW White & Sons Limited v White (UKEAT0022-23/21/VP). Otherwise, the Tribunal must consider whether a hearing is necessary in the interests of justice. Under Rule 72(2) if the Tribunal determines that it is in the interests of justice to decide the application without a hearing, the parties must be given a reasonable opportunity to make written representations. The Tribunal may set out its provisional views on the application; Rule 72(1). 7. The Tribunal has a broad discretion to decide whether or not to reconsider any judgment which it must “exercise judicially … having regard not only to the interests of the party seeking review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”; Outasight v Brown [2015] ICR D11. 8. Elias LJ confirmed the importance of finality in litigation in Ministry of Justice v Burton

[2016] EWCA Civ 714

: “the discretion to act in the interests of justice is not open-ended… In particular the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily...” 9. In Liddington v 2Gether NHS Foundation Trust

EAT/0002/16

, Simler P (as she then was) stated that: “There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed… 10. In exercising the power to reconsider judgments, a Tribunal must give effect to the overriding objective and “deal with cases fairly and justly”; Rule 2. Rule 2 also requires a Tribunal to deal with cases “in ways which are proportionate to the complexity and the importance of the issues” and to avoid delay. Ensuring that litigation is concluded is part of fair and just adjudication.

The Law

[11]The interests of justice test (Rule 70) necessarily means the interests of justice to both sides; Reading v EMI Leisure Ltd EAT262/18. In that case, the EAT considered a reconsideration application by a claimant who wanted a second chance to put the same unsuccessful arguments: “…when you boil down what is said on [the claimant’s] behalf it really comes down to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties, it is not said, and as we see it, cannot be said that any conduct of the case by the employers here caused [the claimant] not to do herself justice. It was, we are afraid, her own inexperience in the situation.”

[12]The EAT examining the predecessor review power (in the 2004 Rules) to the Tribunal’s reconsideration power in the 2013 Rules in Fforde v Black EAT68/80 noted that: “Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in even more exceptional cases where something has gone radically wrong with the procedure involving the denial of natural justice or something of that order.”

[13]If an obvious error has been made which may lead to a judgment or part of it being corrected on appeal, it will generally be appropriate for it to be dealt with using the reconsideration power; Williams v Ferrosan Ltd

[2004] IRLR 607

and approved in Newcastle Upon Tyne City Council v Marsden

[2004] IRLR 607

at paragraph 17. The claimant’s application

[14]The claimant’s application was made within time under Rule 71 as it was received within 14 days of both the date on which the original reason namely the remedy and cost judgment and the written reasons for that judgment were sent to the parties. The same does not apply however to the liability judgment which was made in relation to that judgment. Provisional views; Rule 72(1)

[15]I have considered the claimant’s application for reconsideration, and it is my provisional view that with the exception of the question of the inclusion of compensation for the claimant’s company car which I deal with below that there is no reasonable prospect of the decision reached on 15th November 2021 being revoked. The interests of justice include a desire and need for finality in litigation. The purpose of reconsideration is not to enable parties to reargue the case which they have already put as the claimant now seeks to do.

[16]Ground 1 of the claimant’s application for reconsideration is a reference to his statement it is presumed for the remedy hearing on 15th November 2021.

[17]Grounds 2 to 4 of the claimant’s application were not referred to in his statement for the remedy hearing and relate to the arguments which the claimant made at the original liability hearing in January 2021. Those arguments and documents were fully considered at that hearing as set out in the liability judgment issued in March 2021. No application was made by the claimant for reconsideration of that original decision within the time limit specified by Rule 71. Those grounds will therefore not be considered. In so far as the claimant made general criticisms of the respondent’s treatment of him in his oral submissions at the remedy hearing and relied on this to justify his own poor conduct, I consider this below.

[18]Grounds 5 and 6 relate to Polkey. I found that the claimant would have been dismissed due to his belligerent behaviour within four months of his dismissal applying O’Donoghue v Redcar and Cleveland BC

[2001] IRLR 615

. The claimant appears to challenge this aspect of the original decision on two grounds. First, he says that his escalating poor behaviour and lack of self-control in the workplace were a result of the respondent’s treatment of him. Second, he says that he was out of his depth at the hearing.

[19]The arguments made by the claimant in his letter of 17th November 2021 to excuse his lack of self-control on the basis of the respondent’s treatment of him and on which he now seeks reconsideration were made at the remedy hearing and also outlined in his witness statement for that hearing. The application therefore attempts to relitigate matters which I have already considered and decided. The claimant’s reconsideration application does not give any clear reasons why it would be in the interests of justice to reconsider the Polkey aspects of the original remedy judgment.

[20]Dealing with the claimant’s second reason for requesting reconsideration of the Polkey decision, he says that he was out of his depth at the hearing. I note that the claimant was specifically invited in writing before the hearing to make submissions on Polkey. His witness statement for the hearing on 15th November 2021 specifically addressed the possibility that his compensation award might be reduced. He was also directed to resources on the internet which explain how Employment Tribunals deal with remedy. The claimant also had the benefit of the respondent’s written submissions on remedy which included a submission that the claimant’s award be reduced by 100%. It now appears that he also sought legal advice on remedy.

[21]I directed the respondent’s counsel to assist the Tribunal by explaining the relevant law in addition to providing my own explanation to the claimant of Polkey and the possible scenarios in Software 2000 Ltd v Andrews

[2007] IRLR 568

(as summarised in paragraphs 24 to 27 of the remedy judgment). I ensured that the claimant had a break to the claimant so that he could reflect on the respondent’s oral submissions and the advice on the law provided by myself and the respondent’s counsel before he made oral submissions.

[22]The claimant is therefore seeking a second bite of the cherry and saying that he could now put forward better arguments on remedy. It is clear that the power of review in the 2004 Rules as now encapsulated in the power of reconsideration in the 2013 Rules is not “intended to provide parties with the opportunity of a rehearing at which the same evidence can be produced with different emphasis…: Lord Macdonald in Stephenson v Golden Wonder Limited

[1977] IRLR 474

. The claimant now seeks to recast his arguments on remedy.

[23]My provisional view is that the claimant’s application on grounds 5 and 6 has no reasonable prospect of the remedy judgment being revoked.

[24]Accordingly, my provisional view is that save for the company car issue described below that the claimant’s application has no reasonable prospect leading to the revocation of the original remedy decision. Company car

[25]The claimant’s updated schedule of loss dated up to February 2022 of claimed the sum of £4,486 for his company car taken from his 2018/19 P11D. No breakdown of this calculation was provided.

[26]It appears that I may inadvertently have@ failed to reflect the loss of the claimant’s company car in the remedy judgment. I ran through the heads of loss in giving judgment at the remedy hearing on 15th November and it appears that neither party noticed this omission.

[27]This means that my provisional view is that there is a reasonable prospect that the claimant’s application for reconsideration of the judgment issued on 15th November 2021 may result in the decision being varied to reflect compensation for loss of the company car. Costs

[28]The claimant’s application for reconsideration does not seek to revoke the costs award made against him and from his letter of 17th November 2021 the claimant has now paid the costs awarded to the respondent.

[29]The claimant now however makes a costs application against the respondent. That application was made on 17th November 2021 which was within 28 days of the “after the date on which judgment finally determining the proceedings in respect of that party was sent to the parties: Rule 77. That application is therefore within time.

[30]Regulation 76(1) of the 2013 Rules states that a costs order may be made where a Tribunal considers that- ‘(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success.’

[31]Rule 77 states that no such order may be made unless the paying party namely the respondent has had a reasonable opportunity to make representations.

[32]I will not restate the legal principles concerning the award of costs by the Employment Tribunal which were set out at paragraphs 89 to 97 of my written reasons which were sent to the parties on 20th December 2021. In summary, when considering an application for costs Employment Tribunals should have regard to the two-stage process as outlined in Monaghan v Close Thornton

EAT/0003/01

(unreported) 22/02/02 by Lindsay J at para 22:a. is the costs threshold triggered, e.g. was the conduct of the party against whom costs is sought unreasonable? ; and if so,

b. ought the tribunal to exercise its discretion in favour of the receiving party, having regard to all the circumstances?

[33]The claimant has not provided any grounds in his application to say why the respondent’s conduct was unreasonable. The threshold of unreasonableness is not therefore reached. In the circumstances, the claimant’s cost application is refused. Case Management Orders

[34]Pursuant to Rule 72(1), I therefore invite the parties by 4pm on 17th February 2022 to write to the Tribunal, copied to the other party:a. giving any response to the application for reconsideration taking into account my provisional views as set out above. In the respondent’s case, if the application is opposed, it may wish to give brief reasons for its opposition,

b. providing their views as to whether the application for reconsideration can be determined without a hearing; and

c. indicating if they consider the original decision on 15th November should be varied to reflect the loss of the claimant’s company car, and if so, they are asked to specify how the original decision is to be varied with calculations and an explanation if necessary.