Mr N Casson v Sussex Independent Financial Advisers Ltd: 2300056/2023
JUDGMENT
The claim of wrongful dismissal succeeds. The claimant is awarded £2,916.67 (gross) in lieu of notice.REASONS
1.1 Mr Casson brings a claim for payment in lieu of notice in respect of his employment with Sussex Independent Financial Advisers Limited (“SIFA”).1.2 It is agreed between the parties that Mr Casson commenced working with SIFA on 4th July 2022.1.3 It is similarly agreed that his employment concluded on 7th November 2022 although the exact nature of how his employment came to an end is disputed. Mr Page 1 of 6 Casson claims he was dismissed the Respondent asserts that Mr Casson resigned.1.4 It is therefore common ground that as Mr Casson had worked for less than 2 years at SIFA and as such has no ability to claim unfair dismissal.The Issues
[2]Two principal issues arise in this case:2.1 Had Mr Casson completed his period of probation with SIFA? 2.1.1 It is agreed between the parties that if he had completed his probation then Mr Casson would be entitled to 3 months payment in lieu of notice if a finding is made he was dismissed. If however Mr Casson was still subject to a probationary period then similarly it is agreed that he was entitled to1 months’ notice if it is found that he was dismissed.2.2 Was Mr Casson dismissed or did he resign and terminate his contract?2.2.1 Mr Casson claims that he was dismissed on 7th November 2022 by Mr Karl Hopper-Young (a Director of SIFA). He alleges he was assaulted by Mr HopperYoung who physically ejected him from the building and he had to wait outside as items of his property were brought to him. Mr Casson says that he was emailed that day a letter terminating his contract of employment and which appears at p.44 of the agreed bundle.2.2.2 The Respondent meanwhile asserts that Mr Casson terminated his contract on 7th November 2022. Mr Hopper-Young gives evidence that Mr Casson had, prior to that day, threatened to resign and had been persuaded not to. He gives evidence that on the day in question during a telephone conversation between them Mr Casson said to him ‘That’s it’ and ‘I’ve had enough’ which he took to be Mr Casson resigning. When Mr Hopper-Young came upstairs from his own office he found Mr Casson preparing to leave the building and holding the front door and in essence Mr Hopper-Young says he simply held the door open for Mr Casson to depart. Mr Casson it is then asserted called the police who later attended the premises. The Documentation[3]An agreed bundle of documents has been filed and served in these proceedings consisting of 63 pages. A document headed ‘Statement of main terms’ (at pages 27 – 28 of the bundle) is agreed to set out the principal provisions of the contract Page 2 of 6 of employment. The document sets out that a new member of staff will undertake a period of probation of 3 months at the start of their employment. It also contains provisions in respect of notice periods as I have set out above.3.1 It also notes that employees join on a probationary period of 3 months. It notes that work performance and general suitability will be monitored during that period and, if appropriate, employment will continue. It also makes clear however that the period of probation can be extended and that employees will be notified by the their manager as to the outcome of their probation. It highlights that an employee should not consider that their probation had been passed until such notice had been given.3.2 A document headed ‘The Employee Handbook’ also sets out similar provisions and notes that ‘Resignations must be in writing’Findings of Fact
[4]At the hearing I have evidence from Mr Casson and Mr Hopper-Young by way of written statements and in oral testimony . 4.2 I have watched the relevant parts of two video recordings from CCTV cameras located at the company’s offices which the parties have directed my attention to. Neither camera shows the disputed interaction between Mr Casson and Mr Hopper-Young at the office doorway. The recordings do show however that after Mr Casson left the premises he waited outside for a period for his belongings, he says his jacket and telephone, to be brought out to him. Some minutes later again the recordings capture that another employee brings Mr Casson’s lunch out to him in the car park. 4.3 During the hearing Mr Casson produced a memorandum of a performance meeting undertaken with himself by Mr Hopper-Young dated 12th October 2022. This document had been described in Mr Casson’s witness statement but had not been included in the bundle. Given that it was authored by Mr Hopper-Young and had been clearly identified within the served material I allowed time for the Respondent to take instructions upon the material but allowed the document to be admitted into evidence. 4.4 Mr Casson relies on the document as evidence to establish that he had passed his probationary period. Mr Casson does not say he was given any other document Page 3 of 6 in relation to his probationary period or any verbal indication that he had completed the same. 4.5 I observe that the memorandum would certainly fit with a review of Mr Casson’s work at the end of his first 3 months at SIFA however the document does not mention Mr Casson’s probation at all. Mr Hopper-Young gave evidence that in fact performance meetings were regularly conducted with all staff. Mr Hopper – Young also gave evidence that a 6 month probationary period was usual amongst employees of SIFA. 4.6 There are competing submissions about the overall content of the document. Mr Casson says it was a positive review of his work to date which demonstrates that he had passed the probationary period. Mr Hopper-Young gave evidence that in fact the document was critical of Mr Casson and was a document trying to manage what he had found to be behavioural problems with Mr Casson. Mr Hopper-Young asserted that given the behavioural issues which he was working to resolve first of all he had not yet even reached the stage of reviewing Mr Casson’s work performance. Mr Hopper-Young relies upon the document as demonstrating that Mr Casson had not yet passed his probationary period. 4.7 I find that in reality the document is a mixed review of Mr Casson’s work. It clearly does hint at some issues which must have arisen during Mr Casson’s initial months of employment, particularly in respect to communication between himself and Mr Hopper-Young, but it does also speak positively of Mr Casson and certainly seems to look ahead in a positive light to Mr Casson’s continued employment with SIFA. What is clear is that the document does not specifically address Mr Casson’s probation at all. It is not mentioned and the document is silent as to whether probation has been passed or extended. Given the overall effect of the document, that there were performance issues which were being highlighted and there was no specific statement that the period of probation had been completed, I am driven to the conclusion that in fact Mr Casson had not yet completed his probationary period which, by implication from the memorandum, had been extended. I therefore find if Mr Casson was dismissed then he would be entitled to 1 month’s payment in lieu of notice. 4.8 I turn then to the events of 7th November. As indicated there is a conflict of evidence between Mr Casson and Mr Hopper-Young as to the exact circumstances and whether there was a resignation or a dismissal. 4.9 There are two sources of material which I find persuasive in determining this issue:4.9.1 The video footage – I have outlined above what is agreed can be seen on the recorded material which, as I have stated does not show the interaction at the Page 4 of 6 doorway itself. In those circumstances I make no finding as to what exactly occurred in respect of any alleged physical assault or interaction at the doorway between Mr Casson and Mr Hopper-Young at the doorway. As noted on the footage however it can be seen that Mr Casson is passed items of his property once he had left the building. I find that those passages of the recording are significant as they are in keeping with Mr Casson’s evidence that he had been, to put it neutrally, told to leave the premises. If as Mr Hopper-Young gave evidence Mr Casson had himself resigned and was found by him preparing to exit the premises I find it inconceivable he would not have gathered his essential personal property before leaving. This in my judgment supports the Claimant’s contention that he was dismissed and told to leave the premises.4.9.2 The letter of 7th November 2022 - I find the letter authored by Mr Hopper-Young on 7th November 2022 instructive. As indicated the letter is dated the same day as the disputed events and as such it is clear that Mr Hopper-Young did not wait for any written communication of resignation by Mr Casson as set out in the ‘Employees Handbook’. This in my assessment is particularly significant as the words said to be used by Mr Casson ‘That’s it’ and ‘I’ve had enough’ do not clearly and irrevocably indicate a resignation of employment. The words, disputed by Mr Casson, even were they said, arise in the context of a stressful conversation between the two men. It would in my assessment have been important for clarification of the position to have been provided by a formal notice of resignation, as the contract envisages, given the atmosphere of tension that was clearly apparent at the time of the interaction between Mr Casson and Mr Hopper-Young.4.9.3 An issue explored during the hearing has been when Mr Casson called the police to report what he alleges is the assault by Mr Hopper-Young in forcing him out of the office door. It is suggested by the Respondents that this occurred on the same day and that a police visit to SIFA occurred a day two later on. The Respondent submits that this is important as it demonstrates Mr Casson had no intention of returning to work as his action would clearly have destroyed any relationship between himself and SIFA. Mr Casson however has given evidence that he did not report the matter until a few days later and during the course of the hearing he has produced an email from Sussex police dated 11th November 2022 to support this contention. The Respondent’s, who I gave time to consider this short document, point out that this email is a response to contact Mr Casson had already made and as such the exact date Mr Casson reported matter to the police remains unclear. What however is clear in my judgment is that Mr Hopper-Young chose to write the letter of 7th November prior to any contact from police and so again before any awareness that they had been involved by Mr Casson. Page 5 of 64.9.4 I find then that the terms of the letter are particularly important. The letter makes clear that the contract of employment has been terminated. It goes further to provide reasons as to why this occurred. Mr Hopper-Young set out in the letter what he describes as Mr Cassons ‘ incredibly negative attitude and variable ability to do the job’. It is said that it is because of these elements that the contract of employment has come to an end. I find it compelling that the letter does not refer to Mr Casson having resigned. Nor indeed is there any setting out the events of that day which it is suggested had led Mr Hopper-Young to be of that understanding.4.9.5 Taking into account all the evidence I have heard I therefore do find that Mr Casson was dismissed by the Respondent on 7th November. Given my earlier conclusion in respect of the probationary period I do therefore find that Mr Casson was entitled to 1 months payment in lieu of notice. It is agreed that Mr Casson’s gross monthly pay was £2,916.67 and so this is the sum which is awarded.