Mr N Dennis v London Early Years Foundation: 2202898/2019
EMPLOYMENT TRIBUNALS
Case No 2202898/2019
Between
Mr N DennisClaimantLondon Early Years FoundationRespondent
Before
Employment Judge P KlimovDate 27 March 2021
JUDGMENT
The judgment of the employment tribunal is that the tribunal has jurisdiction to consider the claim under Employment Rights Act 111. RESERVED JUDGMENT The judgement of the tribunal is that:[1]The claimant was unfairly dismissed by the respondent.[2]An 80% reduction for contributory fault will be made to the claimant’s basic award for unfair dismissal under section 122(2) of the Employment Rights Act 1996.[3]An 80% reduction to the compensatory award for unfair dismissal will be made under the principles in Polkey v AE Dayton Services Limited 1988 ICR 142.
REASONS
[1]This was a remote hearing to which the parties did not object. The form of remote hearing was V, video, by Cloud Video Platform. A face to face hearing was not held because it was not practicable due to the coronavirus pandemic and the temporary closure of Victory House. Preliminary issues[2]There was initially some confusion over whether or not the hearing would be able to go ahead after some last-minute correspondence and postponement applications between the parties. However, following some discussion on 15th March, both parties agreed to continue preparations on 15th March in order to go ahead with the hearing on 16th. Given the amount of time that has elapsed since the claimant’s dismissal, and the fact the case was almost ready, it was in accordance with the overriding objective to press on with the hearing. I am grateful to both parties’ representatives for their cooperation and work on 15th March in preparing the hearing to go ahead.
Claims
[3]The respondent operates 39 children’s nurseries and pre-schools in the London area. The claimant was a chef at the respondent’s Katherine Bruce nursery.[4]The claimant was summarily dismissed on 4th March 2019 following an incident with his manager on 2nd November 2018. He claims unfair dismissal under section 98 of the Employment Rights Act 1996.
Issues
[5]The issues on liability were as set out at a preliminary hearing on 23rd October 2020 and are reproduced below. I also heard evidence and submissions on Polkey and contributory fault. a) Was the claimant’s conduct the principal reason for his dismissal? b) If it is established that the principal reason for the claimant’s dismissal was his conduct, then in all the circumstances, including the size and administrative resources of the respondent, and in accordance with equity and the substantial merits of the case, did the respondent act reasonably or unreasonably in treating it as a sufficient reason for dismissing the claimant? Procedure, documents and evidence heard[6]I was referred to an agreed bundle of 222 pages, a witness statement from the claimant numbering 18 paragraphs and witness statements from the respondent’s two witnesses, Ms Maria Freeman, Area Operations Manager and Mr Gary Simpson, Senior Programme Manager, numbering 15 paragraphs and 37 paragraphs respectively.[7]I heard oral evidence from the claimant, Ms Freeman and Mr Simpson.
The facts
[8]These findings are confined to the facts relevant to the legal issues.[9]The claimant worked as a chef at the Katherine Bruce nursery from 2nd November 2015 to 4th March 2019. The Claimant’s conduct at work[10]On 27th April 2018 there was a disagreement between the claimant and his manager, following which the claimant stormed down the corridor shouting, then was ‘shouting and banging things’ in the kitchen. This is recorded in a contemporaneous statement by Navlett Smith (p.126).[11]On 13th August 2018 he received a letter from the respondent detailing various conversations management had had with him about his behaviour at work, including: the incident on 27th April; leaving early; taking annual leave without permission; raising his voice in front of children, staff and parents; not laundering his uniform; the need to follow his manager’s reasonable instructions regarding ordering food; using inappropriate language at work in front of the children; and not completing relevant training. No formal disciplinary action was taken in relation to these incidents. However, the letter stated that it would be kept on file for twelve months and that any further incidents or allegations in this time may result in formal disciplinary action.[12]The claimant was regularly monitored in his work, and this was recorded in ‘supervision records’. One of these records (page 139) states, “Neville is still not completing all the documents that is required of him” and, “Neville to be shown how to complete the paperwork for the third time”. The document is not dated, but the it states that this action was due to be reviewed at the October 31 monitoring meeting. This instruction was therefore given before the 2nd November monitoring meeting, and was due to be assessed at that meeting, as a monitoring meeting did not take place on 31st October. Another instruction given in this document (and therefore before 2nd November meeting) was “Always label cereal boxes once it has been open” This is stated to be “ongoing”.[13]There was therefore a history of the claimant arguing with management, raising his voice, and failing to follow rules and instructions at work. Incident on 2nd November 2018[14]On 2nd November 2018, an incident with Ms Cadore led to a formal disciplinary process. The facts of the incident are disputed. The respondent says that Ms Cadore asked for some kitchen monitoring weekly paperwork which was found on top of the freezer, not in the normal place. She then found some sweetcorn in the freezer that was open, not in a bag and not labelled. This was a problem because all open food in the freezer must be bagged and labelled for health and safety reasons. Ms Cadore also found two open cereal boxes that were not labelled, also against health and safety requirements. Ms Cadore claims that in the course of this meeting the claimant swore at her and that she felt threatened. The claimant says that Ms Cadore asked for some paperwork, which he found for her in the normal place. In retaliation for this Ms Cadore then complained about some flour that was on the floor. In cross-examination the claimant accepted he had failed to label and bag the sweetcorn. He denied any issue with cereal.[15]Following this incident, the claimant was suspended on full pay from 6th November 2018. Investigation[16]An investigation took place. This was conducted by Ms Maria Freeman, Area Operations Manager. Ms Freeman interviewed the claimant, Ms Cadore, and eleven members of nursery staff.[17]The nursery staff were asked questions about the claimant’s behaviour generally, and not about the specific incident on 2nd November. Ms Freeman explained the reason for interviewing witnesses in this way was to get an ‘all round picture’ and to find out what were ‘normal behaviours’ for the claimant. There were no witnesses to the specific incident on 2nd November, it was a “he said, she said” incident, so the interviews were undertaken to help the investigation to establish whether to believe Ms Cadore or the claimant.[18]Several of the eleven witnesses referred to the claimant shouting, being short tempered, argumentative and raising his voice. Most felt he was not aggressive, even if they had witnessed him being angry. Most of the witnesses had also witnessed him having arguments with Ms Cadore and a number felt that the claimant’s and Ms Cadore’s relationship was poor and volatile. Two of the witnesses said they had not seen the claimant being angry, but all of the eleven referred to the claimant arguing, having disagreements with, or ‘clashing’ with management. Invitation to disciplinary hearing[19]The claimant was invited to a disciplinary hearing by letter dated 9 January 2019. The disciplinary invitation letter (page 144-145) sets out the relevant charges under the respondent’s disciplinary policy: Misconduct 4.1.4 refusal to obey a reasonable instruction; 4.1.8 conduct likely to offend other employees, customers/children, visitors, or members of the public; excessive swearing or use of obscene and/or inappropriate language; disregard or neglect of duties; and unauthorised sale of goods on organisation or customers premises. (the ‘Offensive Conduct’ charge) Gross misconduct 4.1.11 acts of insubordination or wilful disobedience of a reasonable instruction[20]The letter purports to explain the reasons behind these charges by stating that: “On the 2nd of November Yvonne Cadore as part of her usual duties conducted a kitchen monitoring. During this check Neville Dennis challenged Yvonne Cadore’s duties as manager undertaking an inspection and also raised concerns about her general approach to him. It is alleged that Neville tone and attitude were unappropriated (sic). It has been noted that similar incidents have occurred in the past.”[21]However, this is insufficient for the claimant to understand which of his actions amounted to misconduct and gross misconduct as set out in the disciplinary charges: 21.1. The letter does not specify which of the claimant’s actions amounted to the disciplinary charge of refusal to obey a reasonable instruction. 21.2. It does not specify which of the conduct listed in the Offensive Conduct charge was relevant to the claimant’s actions. If it was the allegation of swearing, it did not set out the words alleged to have been used. 21.3. The letter did not detail the acts of insubordination the claimant was accused of, or which reasonable instruction he had wilfully disobeyed.[22]The claimant was given the right to be accompanied and told of the date and time of the disciplinary hearing. The letter also notified him that dismissal was a potential outcome of the hearing. Disciplinary hearing[23]The disciplinary hearing was heard by a panel of Mr Simpson, and two nursery managers, Lynne Kelly and Sharon Dhand. The panel had an investigation pack, prepared by Ms Freeman, which was also sent to the claimant around a week before the hearing. The investigation pack contained all the witness statements with the nursery staff, the statement from Ms Cadore, the record of conversation Ms Cadore wrote following the incident, and some supervision records and support notices of the claimant’s, referring to his expected duties in the kitchen, including the undated supervision record referred to in paragraph 12 above.[24]Mr Simpson chaired the disciplinary meeting. At the meeting the discussion was wide ranging and covered several different issues, largely brought up by the claimant, including a number of incidents where he felt he had been harassed by Ms Cadore.[25]The claimant presented a statement written by a solicitor at the meeting (page 159).[26]The specific incidents on 2nd November were discussed relatively briefly at the beginning of the meeting. The claimant had seen Ms Cadore’s account of the incident on 2nd November and was therefore aware of her allegations. He was given an opportunity to put his side of the story generally. However, he was not asked specific questions about the disciplinary charges against him.[27]Regarding the swearing, the notes from the hearing record that he was asked “if he can confirm that he does not swear”. The failure to bag and label the sweetcorn was not put to him, neither was the exact instruction from Ms Cadore that he had failed to follow, nor the fact that he had become angry and Ms Cadore had felt threatened.[28]No other specific details were put to the claimant about what he did or said that amounted to: wrongdoing under the Offensive Conduct charge, ‘failure to obey’ and/or ‘wilful disobedience of a reasonable instruction’, or ‘insubordination’.[29]Regarding the difference between the two charges of ‘refusal to obey’ and ‘wilful disobedience of’ a reasonable instruction, Mr Simpson explained that it would be possible to refuse to obey a reasonable instruction in a way that was not aggressive. However, he said that the claimant was also aggressive whilst he was not following the instruction. This meant his conduct amounted to ‘wilful disobedience’. Mr Simpson said that both these charges referring to ‘reasonable instructions’ related both to the instruction regarding the storage and dating of food and to the claimant’s failure to engage in kitchen monitoring.[30]The claimant told me that he was confused about what the allegations were about, and his written statement to the disciplinary panel (p159) demonstrates that it was the claimant’s view at the time of the hearing that there was a lack of clarity around the allegations.[31]The investigation notes and the disciplinary hearing notes demonstrate that the claimant had a tendency to go off on a tangent and that the interview may have been difficult to manage. However, I agree with the claimant that it was not clear what allegations he had to answer. The respondent had made it clear that the claimant was charged with misconduct and gross misconduct and had quoted the relevant parts of its disciplinary policy. However, it failed to set out what the claimant had done to make him subject to those charges. This meant the claimant was unable to put his side of the story in anything more than general terms. There was no way for the claimant to know for sure, for example, that the ‘reasonable instruction’ he was accused of failing to follow related to the failure to store food safely and to his lack of engagement in the kitchen monitoring. This should have been made very clear to the claimant in the disciplinary invitation letter and in the hearing. It should also have been clear to him that the insubordination charge related to his allegedly aggressive conduct (including swearing) whilst failing to follow a management instruction. Disciplinary findings and dismissal[32]The claimant was summarily dismissed by letter dated 4th March 2019, with effect from that date. The letter listed the two conclusions the panel had come to: 32.1. The panel found it probable the claimant was not being truthful in his description of the events of 2nd November. The disciplinary letter states that the reason for the panel’s belief that the claimant was not telling the truth was because he “never answered a question with a “yes” or a “no”.” This placed a lot of weight on the claimant’s communication style rather than his substantive answers. 32.2. The panel also found that Ms Cadore thought the claimant was threatening her, that it was reasonable for her to have believed that, and that he had in the past demonstrated an “excessive amount of anger” at Ms Cadore.[33]In his evidence Mr Simpson confirmed that the panel had also concluded that the claimant had not complied with instructions regarding safe storage of food in the fridge freezer and that he had been aggressive and hostile during the kitchen inspection. Taking into account the witness evidence of the nursery staff, and their view of the claimant’s evidence in the disciplinary hearing, the panel felt it was more likely than not that the claimant had behaved in the way described by Ms Cadore.[34]I asked Mr Simpson about the weight the panel put on each of the two conclusions in the disciplinary letter. He explained the panel put equal weight on the two conclusions when deciding on the disciplinary outcome.[35]The claimant was offered the opportunity to appeal and given five days to do so. He did not appeal at the time, but did try to appeal by email on 10th May 2019. The respondent refused to hear his appeal due to the amount of time that had elapsed. Findings of fact for contributory fault[36]The claimant had a history of angry outbursts and arguing with Ms Cadore. Several of the staff interviews described a relationship clash between Ms Cadore and the claimant and some imply that Ms Cadore was also at fault. Staff had witnessed the claimant raising his voice and being argumentative. The letter of 13th August 2018 describes a number of issues where the claimant had either failed to follow rules on timekeeping or holiday, or had behaved inappropriately towards management, including occasions of shouting and swearing. The claimant and Ms Cadore had a difficult relationship in which Ms Cadore was also somewhat at fault.[37]The claimant and Ms Cadore therefore had a history of antagonising each other. Against this background, I find it more likely than not that the claimant did raise his voice in the meeting with Ms Cadore, that he did become angry and he did swear, and that this was an inappropriate response to management which amounted to insubordination.[38]Regarding the proper storage of food, the claimant admitted in cross examination that he had not stored the sweetcorn in the correct way. He said he had only opened it the day before, so there would be time to label it without any problem. This suggests a careless approach to the respondent’s rules. The ‘supervision record’ records a similarly careless approach to cleaning as it records the need to sweep under the units, clean the window ledge, and clean the crockery and cutlery properly. It records that “Neville agreed with me on the following concerns [regarding the cleaning] and said that he needs to pay more attention to his work” (p88). Taking into account his admission about the sweetcorn, and his careless approach to other kitchen rules, I find it more likely than not that the claimant failed to label the cereal as he had been instructed to do, which was a failure to obey a reasonable management instruction, as was his failure to label and bag the sweetcorn.
Law
[39]The claimant claims unfair dismissal under section 98 Employment Rights Act 1996: Section 98(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee[40]In misconduct dismissal the well-established guidance on fairness within section 98(4) are the decisions in British Home Stores Ltd v Burchell [1978] IRLR 379, Iceland Frozen Foods Ltd v Jones 1983 ICR 17, EAT and Post Office v Foley [2000] IRLR 827: 40.1. Did the employer genuinely believe that the claimant was guilty of misconduct? 40.2. If so, was that belief based on reasonable grounds? 40.3. Had the employer carried out such investigation into the matter as was reasonable? 40.4. Did the employer follow a reasonably fair procedure? 40.5. Was it within the band of reasonable responses to dismiss the claimant rather than impose some other disciplinary sanction? 40.6. The tribunal must consider the reasonableness of the employer’s conduct. 40.7. In judging the reasonableness of the employer’s conduct a tribunal must not substitute its decision as to what was the right course to adopt for that of the employer.[41]The principle in Polkey v AE Dayton Services Ltd 1988 ICR 142, HL means that the tribunal may consider whether a reduction should be made to any compensatory award if the tribunal finds that, had a fair procedure been followed, the claimant would still have been dismissed.[42]The tribunal may reduce basic and compensatory awards for culpable conduct as set out in sections 122(2) and 123(6) of the Employment Rights Act 1996: Section 122 – Basic award: reductions … (2) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. Section 123 – Compensatory award … (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. Conclusions Reason for dismissal
Conclusions
[43]The parties agree the claimant was dismissed for gross misconduct. The dismissal was therefore for a fair reason under s.98(2)(b) of the Employment Rights Act 1996. Did the respondent genuinely believe that the claimant was guilty of misconduct?[44]The respondent had a genuine belief that the claimant had shouted, behaved angrily and sworn in the conversation with Ms Cadore on 2nd November. They based this on Ms Cadore’s evidence that he had shouted loudly, waved his hands and sworn at her. Based on Ms Cadore’s account that the claimant had: failed to keep paperwork in the appropriate place, failed to store food safely and argued with her about food storage, the respondent also concluded reasonably that the claimant had failed to complete paperwork and to store food safely, having previously been told of the importance of both these things in the ‘supervision records’ referred to above. Was that belief based on reasonable grounds?[45]That belief was held on reasonable grounds. The reason the respondent believed Ms Cadore’s account more than the claimant’s was partly the evidence of the other nursery staff which revealed that this type of behaviour was not particularly unusual from the claimant. They also took into account the claimant’s style of answering questions and the fact he did not answer questions with “yes” or “no”. I was concerned about the reliance on this reason as it placed a lot of weight on the claimant’s communication style rather than the substance of what the claimant said. However, the respondent’s reliance on the evidence of the other nursery staff was sufficient to make its belief reasonable overall.[46]Based on Ms Cadore’s evidence, which the respondent reasonably accepted, it was reasonable to conclude that the claimant had behaved in the way alleged and that shouting, behaving angrily towards her and swearing amounted to insubordination, classed in the respondent’s disciplinary policy at 4.1.11 as gross misconduct.[47]The disciplinary panel also had evidence in front of it that the claimant had been given clear instructions about good record keeping and safe food storage. It was therefore also reasonable to conclude that the claimant had failed to follow reasonable instructions around safe food storage (which is classed as misconduct in the disciplinary policy at 4.1.4), specifically in relation to cereal and sweetcorn.[48]I did not find a reasonable basis for concluding the claimant was guilty of the Offensive Conduct charge as all the allegations that could fall within that charge (swearing and failing to store food properly) fall within the other charges, which would have amounted to double counting the claimant’s conduct. Had the respondent carried out such investigation into the matter as was reasonable?[49]Parts of the investigation were reasonable: the claimant and Ms Cadore were interviewed, and relevant evidence was shown to the claimant. I had some concerns about the interviews with other nursery staff and considered whether they were a reasonable part of the investigation: 49.1. Ms Freeman interviewed eleven members of nursery staff, none of whom witnessed the incident on 2nd November 2018. Those members of staff were asked about the claimant’s behaviour in general. 49.2. I considered whether the interviews were reasonable. I concluded that on this occasion they were. Ms Cadore had alleged that she had felt threatened by the claimant and that he had sworn at her. The claimant denied this. There were a number of documented examples of the claimant losing his temper in meeting notes and the Employee Action Support Notice, and the panel could have relied on these to help them to decide whether to believe Ms Cadore or the claimant. However, as these documents were largely written by Ms Cadore, it was necessary to interview others to gain a wider view of the claimant’s behaviour in order to assess the veracity of the claimant’s and Ms Cadore’s accounts regarding 2nd November.[50]However, the respondent did not carry out a reasonable investigation overall as it did not put the disciplinary charges to the claimant in a way that enabled the claimant to understand exactly what he had done that amounted to misconduct and gross misconduct. Did the respondent follow a reasonably fair procedure?[51]The respondent’s procedure was not fair. Much of the procedure was fair: the claimant was invited by letter to a disciplinary process that was held in accordance with the respondent’s policy, the claimant was interviewed as part of a wider investigation, relevant evidence was put to him, an independent panel was convened to hold the disciplinary hearing and the claimant was allowed to be accompanied at that meeting. He was given the opportunity to appeal within a certain timeframe. The respondent refused to hear his appeal when it was presented substantially outside this timeframe, which was reasonable. However, the failure of the respondent to put the allegations to the claimant in a way that enabled him to fully understand which of his actions or inactions had caused him to be charged with the three disciplinary charges referred to above meant that the procedure as a whole was unfair: 51.1. The extract of the disciplinary invitation letter quoted at paragraph 20 above is relatively vague. It does not say what the claimant is alleged to have said, or how his tone and attitude were inappropriate. There are no further details about the previous ‘similar incidents’. It is not clear what or which ‘reasonable instructions’ he failed to follow. 51.2. The specific incidents regarding the claimant’s failure to date and bag the sweetcorn, and the claimant’s failure to engage in kitchen monitoring, mentioned by Mr Simpson, were not put to the claimant clearly at any stage of the process, albeit that he had had sight of Ms Cadore’s witness statement. 51.3. It was not made clear to the claimant what he said or did that amounted to insubordination. 51.4. Similarly, regarding the very widely defined Offensive Conduct charge, no specific details were put to the claimant, although he was asked about swearing in general terms.[52]There was therefore insufficient clarity about which specific actions of the claimant the respondent considered misconduct and gross misconduct. This meant that the procedure as a whole, although extensive, was not reasonable.[53]The claimant was therefore unfairly dismissed by the respondent under s.98 Employment Rights Act 1996. Polkey and the range of reasonable responses Polkey[54]I considered whether any adjustment should be made to compensation on the grounds that if a fair process had been followed by the respondent, the claimant might have been fairly dismissed in accordance with the principles in Polkey v AE Dayton Services Ltd [1987] UKHL 8, Software 2000 Ltd v Andrews [2007] ICR 825; W Devis & Sons Ltd v Atkins [1977] 3 All ER 40; and Credit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604.[55]If the respondent had given the claimant specific details of the actions that led to the disciplinary charges, and he had had an opportunity to respond to those, I find it very likely that he would still have been dismissed in any event, and within the same timescale that the actual process took. I put that likelihood at 80%. I come to that conclusion because: 55.1. I considered the length of time the claimant was suspended from 5th November 2018 to his dismissal on 4th March 2019. A reasonable process would not have taken any longer than the actual process, given that the actual process took around four months. 55.2. The weight of evidence against the claimant was substantial. The interviews with the eleven members of nursery staff suggested that shouting, being argumentative and occasionally swearing, were relatively normal behaviours of the claimant. There was also evidence in the letter of 13th August that the claimant had history of behaving in this way. The supervision record showed the claimant had been told how to store food safely and how to complete the relevant paperwork, and had failed to do so in the past. It is therefore very likely that, even if the specific allegations had been put to the claimant, and his evidence had been taken into account, the respondent would have come to the same conclusion and accepted Ms Cadore’s account. 55.3. However, it is possible that if the claimant had been given an opportunity to respond to the allegations directly, the respondent may have concluded that he was guilty of misconduct rather than gross misconduct, particularly if the panel had been given evidence about the claimant and Ms Cadore’s relatively volatile relationship. Or in the alternative, that they would have concluded his conduct was gross misconduct but they would have considered a lesser sanction for the same reason. The range of reasonable responses 55.4. The respondent was reasonable to find that the claimant swore and raised his voice to Ms Cadore and was inappropriately angry to the extent that Ms Cadore felt threatened. The respondent was also reasonable to find that the claimant had failed to follow instructions regarding safe storage of food, not for the first time. 55.5. The claimant’s actions towards Ms Cadore were therefore gross misconduct within the respondent’s policy because they amounted to insubordination and wilful disobedience. A reasonable employer in the respondent’s position could have dismissed the claimant in those circumstances and accordingly the claimant’s dismissal was within the range of reasonable responses to the claimant’s conduct. Contributory fault[56]The claimant contributed to his dismissal by 80% as he swore at, and behaved angrily towards Ms Cadore, and failed to store food safely despite having been instructed to do so.[57]The claimant’s basic award is therefore reduced by 80% under section 123(6) of the Employment Rights Act 1996.[58]Taking into account Dee v Suffolk County Council EAT 0180/18 I have looked at the matter as a whole and do not apply a reduction to the compensatory award for contributory fault in addition to Polkey, as this would amount to ‘double counting’ the reduction.[59]Basic and compensatory awards are therefore payable to the Claimant. The parties will be advised of the date of the remedy hearing.