Employment Judge SwafferIn person for claimantMs A Rumble (instructed by Counsel) for respondentDate 26 October 2022
JUDGMENT
[1]The Claimant was unfairly dismissed by the Respondent.
REASONS
Introduction
[1]From 7 August 2017 until his dismissal on 25 November 2020 the Claimant was employed as a sales advisor by the Respondent. He advised on and sold Sky products to members of the public. At the material time the Claimant was based at the Respondent’s retail stand in the Bentall Centre in Kingston upon Thames (the stand).[2]The Respondent operates small retail units or stands within shopping centres, selling television, broadband and telephony products to customers who approach the stand and wish to buy the Respondent’s products.[3]The Claimant claims that his dismissal was unfair within Section 98 Employment Rights Act 1996 (ERA). On 3 February 2021 the Claimant made a claim for unfair dismissal, seeking re-engagement and compensation.[4]The Respondent contests the claim, stating that the Claimant was fairly dismissed for gross misconduct in the form of a breach of its data protection policies. It claims that it was entitled to terminate his employment because of his gross misconduct.[5]The Claimant was unrepresented, and gave sworn evidence. The Respondent was represented by Ms Rumble of Counsel, who called sworn evidence from Mr Ricky Davis Team Leader Sky Retail Stores Limited, Ms Tracy Halliday Sales Manager at Sky Retail Stores Limited, and Ms Margaret Kerr Regional Manager Sky Retail Stores Limited. I considered documents from an agreed 436 page bundle of documents which the parties introduced in evidence, plus other documents from the Respondent provided during the course of the hearing as agreed by the Tribunal. The Claimant also provided character references, which were not introduced in evidence.
Preliminary matters
[6]Before I heard any evidence, I had to deal with the preliminary matter of the Respondent’s witness statements. On the morning of the hearing, I was provided with three witness statements by Mr Davis, Ms Halliday, and Ms Kerr, which were not part of the bundle. There was also a witness statement by the Claimant dated 9 February 2022, which the Respondent had already received prior to the hearing, and a copy of which was provided to the Tribunal in advance of the hearing date.[7]There was no list of issues prepared in the case. The Respondent’s representative had prepared her own suggested list, which I discussed with the parties and which was used as the basis for the list of issues agreed at the outset of the hearing. The list of issues was as follows:a. What was the reason for the Claimant’s dismissal?b. Was that reason a potentially fair reason?c. Did the Respondent have a genuine belief that the Claimant had committed an act of gross misconduct?d. Was this belief based on reasonable grounds?e. Did the Respondent carry out a reasonable investigation?f. Was the Respondent’s decision to dismiss within a range of reasonable responses open to it?g. If the procedure followed by the Respondent was unfair, would the Claimant have been dismissed in any event?h. Did the Claimant contribute to the dismissal?i. What should any remedy be?[8]The Claimant confirmed that the Respondent had paid all monies owing on the termination of his employment. His complaint was that the decision to dismiss for gross misconduct was unfair as the Claimant had the customer’s consent to pass on her details, and the process which led to the dismissal was also unfair due to its duration.[9]Once the list of issues was agreed, I then sought submissions about the length of time each side anticipated spending in cross examination. The Claimant was not calling any additional witnesses; the Respondent had three witnesses, as referred to above. I adjourned so that the Claimant and I had time to read the statements of the Respondent’s three witnesses.[10]I heard oral evidence from the Claimant, and from Mr Davis, Ms Halliday, and Ms Kerr.[11]Due to time constraints, I did not hear any specific evidence or submissions with regard to remedy.
Findings of fact
[12]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents. Many of the facts in this case are not disputed, but the details are included here as relevant background to my decision. The parties presented a significant amount of evidence to the Tribunal during the hearing. If this judgment and the reasons are silent on some of those matters, it is not that they were not considered, but that they were not sufficiently relevant to the issues that the Tribunal had to decide to be included in the final decision.[13]Generally, the Complaint met his performance targets. In 2018 due to family issues and his caring responsibilities as a single father, the Claimant moved to a flexible working arrangement. In late September 2019 the Claimant’s grandmother died. She lived in Ghana, and was caring for his disabled son N. On 2 October 2019, the Claimant travelled to Ghana to attend the funeral and make arrangements to return N to the UK. Whilst the Claimant was in Ghana, his team leader AH sent a letter to the Claimant’s home address stating that he was absent from work without leave (AWOL). First investigation September-December 2019[14]It is not clear exactly when the first investigation began, but it covered the alleged AWOL and the Claimant’s use of the stand phone to call Ghana during working hours. At the same time that the first investigation was taking place, on 28 November 2019 the Claimant expressed concerns about the behaviour of a female colleague, RD. On 3 December 2019 the Claimant contacted AH with a question about uniform policy, arising from a male colleague CE’s dress.[15]A conduct meeting was held on 9 December 2019 in relation to the AWOL and telephone calls. An outcome letter dated 11 December 2019 was sent to the Claimant.[16]With regard to the AWOL, there is a dispute between the parties about the steps the Claimant states that he took to inform the Respondent of the bereavement and his wish to travel for the funeral. The Claimant refers to various steps as set out in the bundle; the Respondent denies that the Claimant made it aware that he wished to take leave to attend the funeral. I do not consider it necessary to make a finding of fact about what happened with regard to the AWOL incident, given that the allegation was not upheld and the issue is not relevant to the claim for unfair dismissal.[17]The allegation relating to the Claimant’s use of the Respondent’s phone for personal calls was upheld, in the following terms as set out in the outcome letter: I confirm that you have been issued with a Final Written Warning given as a result of your conduct. In particular: In breach of Sky’s acceptable use policy, you made 97 calls to Ghana between the dates of 23rd October 2018 and 19th September 2019 which resulted in a financial loss to Sky totalling £1.033.84. In addition, when making these calls which totalled 17 hours and 6 minutes, you were unavailable to support customers which had potential to result in reputational damage to Sky. This letter will be placed in your personal file and will be disregarded after a period of 12 months. Further recurrence of unacceptable conduct could result in further action being taken under the Conduct Policy.[18]In the notes of the meeting, the investigator accepts in relation to the phone calls that the Claimant’s “decision making was impacted during a stressful and emotional time in [his] personal life”, and gives this as the reason for issuing the Final Written Warning rather than dismissing him. He also offered the Claimant an “occupational health referral, to support both you and your line manager in understanding what your needs are in the work place”. The Claimant offered to repay the cost of the calls during the investigation, and subsequently repaid the monies owing.[19]The Claimant did not appeal against the Final Written Warning. Second investigation (by Mr Davis) 11 December 2019- 28 May 2020[20]On 11 December 2019 RD alleged that the Claimant had intimidated, bullied, and harassed her. The same day, an investigation meeting was held by Mr Davis with RD in relation to her allegations of intimidation, bullying and harassment against the Claimant. In particular RD made allegations that the Claimant left his daughter for long periods at the stand, that the Claimant had shared log in details with his colleague CE contrary to the Respondent’s policies, that the Claimant was inappropriately involved in RD’s personal relationships, that the Claimant made inappropriate remarks to RD after she declined a date with him, that the Claimant made inappropriate comments about women who passed the stand, and that the Claimant played inappropriate music with offensive lyrics from the stand.[21]Between 11 and 19 December 2019, the Claimant continued to work on the stand as usual, including overlapping shifts with RD.[22]An investigation meeting was held by Mr Davis with the Claimant on 19 December 2019. The Claimant denied RD’s allegations, and suggested that RD may be retaliating against him in relation to a separate incident where RD was suspected of bullying another (non-Sky) Bentall Centre employee. The Claimant was suspended on full pay after the meeting whilst Mr Davis carried out investigations.[23]The Claimant had been due to take annual leave between 20 December 2019 and 4 January 2020 and had planned to travel to Ghana with his children. In his statement dated 9 February 2022, the Claimant states at paragraph 7, that Mr Davis “instructed me to make myself available for investigation interviews, at very short notice” whilst suspended. I find that the Claimant interpreted this instruction as meaning that he was unable to take his pre-booked annual leave; he told me that he was afraid to take that leave, given what had happened when he went to Ghana in October 2019. Mr Davis told me that he did not know the Claimant had annual leave booked, and that this should still have been honoured whilst the Claimant was suspended. I find that the Claimant’s decision not to travel to Ghana for his pre-booked annual leave was due to a misunderstanding of what Mr Davis meant by needing to make himself available. I do not find that Mr Davis told the Claimant he could not take his pre-booked annual leave. I find that the Claimant’s actions in not travelling to Ghana for Christmas in 2019 were understandable given his recent experience when he went to Ghana for the funeral in October 2019. I do not consider that this misunderstanding is particularly significant in terms of his claim for unfair dismissal.[24]On 7 January 2020 Mr Davis met with CE, who alleged that the Claimant was often late for work. He agreed with RD’s allegation that the Claimant shared log in details and played inappropriate music on the stand.[25]On 5 February 2020 Mr Davis met again with RD. She alleged that the Claimant argued with her on the stand in front of customers and she felt intimidated. She alleged that the Claimant frequently left the stand for long periods when he was on his phone. The same day, RD resigned.[26]On 17 February 2020 Mr Davis again met with the Claimant, where the Claimant expanded on RD’s possible motivation for making allegations against him.[27]On 9 and 27 March 2020 Mr Davis met with CE. CE agreed with RD that the Claimant left his daughter on the stand, alleged that he had accessed the Claimant’s Sky account two or three times, and alleged that the Claimant made inappropriate comments about women.[28]During a meeting with former employee SC on 9 March 2020, SC alleged that the Claimant spent long periods away from the stand, long periods on his own mobile, that he would give customers his personal mobile number, made inappropriate comments about women, would leave his daughter at the stand, and would play inappropriate music at the stand.[29]Crucially for this case, during the meeting with CE on 27 March 2020 when Mr Davis was discussing allegations that the Claimant gave customers his personal mobile number contrary to the Respondent’s policies, CE stated: “I can also provide evidence that [the Claimant] kept customers numbers, he sent me a message with a customer’s phone number asking me to call them and complete a deal. I called the customer [SF] from the stand phone. She became very upset and asked me why it was not [the Claimant] calling her. I apologised and said I would ask [the Claimant] to call her. I have provided this text message to [Mr] Davis during this investigation”.[30]Mr Davis met with the Claimant again on 15 April 2020. The Claimant confirmed his understanding of the Respondent’s data protection policy, and that he was not allowed to give customers his personal mobile number. The Claimant explained that his grandmother had died and that on 2 October 2019 he was at Heathrow airport waiting to travel to Ghana. A potential customer (SF) rang him, and he explained that he was unable to assist her. The customer was dissatisfied, and he felt he was not providing a good customer service. The Claimant states that he suggested the customer should go to or call the stand where a colleague could assist her, but she did not want to do this. She was not willing to wait until he returned to work. The Claimant states that the customer asked him to pass her name and number to a colleague, which he did, sending her details to CE by text using his personal mobile and asking CE to call her. The Claimant said that he wanted to promote the Respondent’s business, and provide the best customer service. He felt pressurised by the customer. He also said that he had her consent to share her details, and she was only a prospective customer not an actual customer. I have no reason not to accept the Claimant’s account of the events of 2 October 2019.[31]On 28 May 2020 Mr Davis concluded that there was a formal disciplinary case against the Claimant in relation to the allegations that he had given his personal log in details to another colleague, that he had a customer’s details in his personal mobile phone and texted those details to another colleague without the customer’s consent, that he made inappropriate sexual comments about women who passed the stand, and that he played inappropriate music with offensive lyrics from the stand. Ultimately, the allegations in relation to inappropriate comments to women and inappropriate lyrics were not upheld, and I will not discuss them in any further detail.[32]In his oral evidence, Mr Davis stated that at no point during his investigation had the Claimant made him aware of any mental health or memory difficulties.[33]Mr Davis also said that the delays in completing his investigation were due to the Claimant being on leave, the impact of Christmas and difficulties in arranging meetings with the witnesses, new information being provided at each meeting which meant further investigations were needed and more time needed for the Claimant to respond to the additional allegations, the Claimant being unavailable for a meeting due to his son’s health, and the Claimant needing to isolate after contracting Covid19. I note that on 9 February 2020 the Claimant was caring for an unwell child, and said he needed a week to monitor her. I also note that on 1 April 2020 the Claimant informed Mr Davis by email that he was showing symptoms of Covid19, that family members were suspected to have Covid19, and asked whether questioning could take place after he had completed his isolation, assuming questioning by email was not possible. The Claimant also mentioned that he had been suspended for 4 months, and asked for details of his line manager as he had heard that KO’R had left. On 6 April 2020 Mr Davis replied to the Claimant, seeking clarification of the dates of his isolation period and providing details of his line manager. The issue of the length of the Claimant’s suspension was not addressed, although Mr Davis did make the following comment “I would also like to remind you of the confidentiality agreement that you have signed and also the conditions of your suspension which state you must not make contact with any member of staff without prior approval of the investigation manager”.[34]Part of the Claimant’s terms and conditions of employment were set out in the Sky How We Work (HWW) document (page 53 of the bundle). This included a provision at page 8 under the heading Keeping customer information safe which states: “we don’t disclose customers’ details to anyone else, and we don’t write their personal details (such as name, address) anywhere other than on Sky approved collateral (such as Customer Checklists)”.[35]On page 7 (page 52 of the bundle), HWW states: “We process all sales using our online sales systems (either Archimedes or RSG). Only when they are not available do we book the sale through the Sky Call Centre process. No other method can be used”.[36]Ms Kerr told me and in the absence of any evidence to the contrary I accept that customers and prospective customers are treated in the same way for the purposes of HWW and the Respondent’s data protection policy, and that there are no differences in the polices which apply to the handling of their data.[37]The Respondent’s Conduct Policy is set out at pages 64-67 of the bundle. At page 67 of the bundle, as part of the Conduct Policy, examples are given of what may amount to gross misconduct, includinga. serious breach of the terms and conditions of your employment and/or Sky rules and policies,b. negligent, reckless or wilful failure to comply with the provisions of Sky’s Data Protection policies. First invitation to disciplinary meeting on 4 June 2020[38]In her letter to the Claimant dated 5 November 2020 inviting him to the disciplinary meeting, Ms Halliday refers to a letter from Mr Davis to the Claimant dated 26 May 2020 inviting him to a disciplinary meeting to be chaired by JB on 4 June 2020. That letter from Mr Davis was not introduced in evidence.[39]The meeting on 4 June 2020 did not proceed, and I quote from Ms Halliday’s letter dated 5 November 2020 “this meeting did not go ahead as you provided a fit note from your GP and stated you were not fit to attend which resulted in [JB] discussing an Occupational Health (OH) Referral with you, which you authorised and subsequently attended a telephone consultation on 18th June 2020. I have been advised, the OH Report stated you were not fit to attend meetings at that time however would be fit to return to work at the end of your fit note which was 30th June 2020. I believe you did not return to work and continued to provide fit notes covering your sickness absence. I have been made aware you have been able to communicate via another process, which I have taken into consideration and therefore, on that basis, it is reasonable for me to request you attend a Conduct Meeting in accordance with Sky’s Conduct Policy”.[40]There was no clear evidence before me as to whether the Claimant remained unfit to work between 30 June 2020 and the termination of his employment on 25 November 2020, although I note the reference to Ms Halliday’s understanding that he continued to provide fit notes, and also the Claimant’s own evidence that he provided a fit note from 4-30 November 2020. In any event, there is no evidence of any subsequent contact between the Respondent and the Claimant with regard to the disciplinary meeting until Ms Halliday’s letter from which I quote above. Grievance meeting with Mr M Whan 28 August 2020[41]On 1 July 2020 the Claimant raised several grievances about his treatment. One of the Claimant’s concerns was that the allegations raised by RD on 11 December 2019 could have been discussed during the conduct meeting on 9 December 2019.[42]In his oral evidence, the Claimant stated that the various allegations by RD and CE should not have been investigated as they were raised after he raised issues in relation to those colleagues, and after he had “survived” the first investigation. He considered that they should have been investigated during the first investigation in September-December 2019, as the alleged matters all happened during that period.[43]I am unaware of any findings made following the Grievance Meeting. However, I accept the Respondent’s evidence that it would not have been possible to investigate RD’s allegations prior to or during the 9 December 2019 conduct meeting, given that the allegations were not made until two days after the conduct meeting had concluded. This is important, as the Claimant has raised several times concerns about why these issues were not dealt with during that first investigation. I am satisfied this would not have been possible as the allegations were not then known. Similarly, I also accept the Respondent’s evidence that it would not have been possible to investigate the allegations made by CE, given that they were made after the conduct meeting had concluded.[44]At the Grievance meeting on 28 August 2020, Ms Halliday was note taker. At the meeting, the Claimant also raised his concerns that the OH support recommended as part of the outcome of the 9 December 2019 meeting had not been forthcoming. He believed that he was only contacted by OH on 18 June 2020 after his GP had signed him off as unfit to work on 4 June 2020, and his psychotherapist Dr DK had written to the Respondent on 12 June 2020. After that contact, no other OH support had been provided to him. The reasons for this were not clear. I accept the Claimant’s evidence that there was a clear link between the GP signing him off as unfit to work on 4 June 2020 as this meant that the disciplinary meeting could not take place that day, and the OH referral. I do not find that the letter from Dr DK was material in the Respondent’s decision to refer the Claimant to OH.[45]The conclusion of the Grievance meeting was that there were issues to be investigated, although it was not clearly set out what those issues were. No further evidence was provided about the outcome of any subsequent investigation following the Grievance meeting. I consider that the outcome of any related investigations is not significant in terms of the current claim. Disciplinary hearing with Ms Halliday 24-25 November 2020[46]On 5 November 2020 by the letter discussed above Ms Halliday invited the Claimant to a disciplinary hearing to discuss the allegations identified by Mr Davis. The meeting was held remotely on 24 November 2020, and the Claimant attended with his trade union (TU) representative; an earlier date of 17 November was rearranged at the Claimant’s request so that the TU representative could attend. Ms Halliday states that at no point did the Claimant make her aware of any mental health issues, or state that he did not feel able to participate in the disciplinary hearing.[47]After discussion of the allegations with the Claimant, Ms Halliday dismissed all the allegations with the exception of the breach of the data protection policy in relation to the customer’s details. In her letter dated 25 November 2020 (page 200), Ms Halliday states: “You have been summarily dismissed for gross misconduct on the basis that you have breached Sky Retail How We Work and Data Protection, specifically by having a prospective customers name and contact number in your personal phone and texting those details to another advisor, without the customer’s consent, for the purpose of obtaining a sale”.[48]At the hearing, the Claimant accepted sending the customer’s details to CE on 2 October 2019 using his personal mobile, and explained that he was not thinking clearly given his emotional state due to the bereavement and need to collect his son from Ghana. He was also pressurised by the customer.[49]Ms Halliday noted that the Claimant knew he should not save or share customer details, that he was aware of the Respondent’s data protection policies, HWW, and the potential cost and damage to the Respondent’s reputation should there be a data breach. Ms Halliday found no evidence the customer had consented to the Claimant passing on her details, and noted that to pass on details was still contrary to the Respondent’s policies. She took into account the mitigation relating to his emotional condition at the time and the pressure he felt from the customer to help her. She did not attach any weight to the possible motivations of RD or CE in making allegations against the Claimant in this context, as there was a clear data protection breach. Ms Halliday upheld the allegation and dismissed the Claimant for gross misconduct on 25 November 2020.[50]In his oral evidence the Claimant accepted that he knew the Respondent’s polices about customer data and the processes which should be followed, including how it should be recorded and processed. He accepted that customer details should only be recorded on the Respondent’s approved collateral. He said that he did not record or save SF’s details, merely passed them on with her consent. In any event she was a prospective customer, not an actual customer. The Claimant accepted that the Respondent had policies in place due to the importance of data handling to its business. He said that he believed Ms Halliday would have been aware of his mental health issues due to the letters sent by Dr DK to the Respondent on 30 November 2019 and 12 June 2020 (pages 238 and 240), and he did not therefore mention them during the meeting on 24 November 2020.[51]In her oral evidence, Ms Halliday stated that the issue of the customer’s consent had no bearing on her decision to dismiss the Claimant, despite the reference in the letter dated 25 November 2020 to the Claimant acting without the customer’s consent. She stated this was an error. I am concerned by the inclusion of a reference to consent in the decision to dismiss if that consent had no bearing on the decision to dismiss. It is also understandable that the Claimant would have found this concerning, given that his mitigation for his conduct included the customer giving consent to him sending her details to CE. However, I find that this error was rectified during the appeal hearing as described below. Appeal hearing with Ms Kerr 30 November 2020-15 January 2021[52]On 30 November 2020 the Claimant’s appeal against the decision to dismiss him was allocated to Ms Kerr. His grounds of appeal were that he had been signed off work since 4 November 2020 and was therefore unfit during the hearing on 24 November 2020, his mental health on 2 October 2019 should have been taken into account, there was no complaint by the customer about the use of her personal information, and that CE’s intent in raising the issue was malicious.[53]On 10 December 2020 Ms Kerr chaired an appeal hearing. The Claimant expanded on his mental health issues, said that he was receiving treatment, that on 2 October 2019 he was travelling to his grandmother’s funeral, and that the customer was pressuring him. He said he suffered from memory problems and anxiety. He provided Ms Kerr with the letters from the psychotherapist Dr DK, who had been treating him since 2014, with an additional letter dated 30 November 2020 (page 239). He explained that these factors all impacted on his decision making on 2 October 2019. The Claimant said that he had told his team leader about his mental health difficulties. He had assumed that Ms Halliday would have known about his mental health problems.[54]The Claimant also said he believed Ms Halliday would have known that he was not physically fit during the hearing on 24 November 2020. In her statement she states at paragraph 11 that the Claimant “was provided with ample opportunity to tell me whether he was fit to proceed. [The Claimant] did not raise at any time during the disciplinary that he was not feeling 100% nor did he ever indicate to me during the disciplinary process that he was not feeling well”.[55]I note that there is no record in the notes of the meeting on 24 November 2020 that Ms Halliday checked with the Claimant whether he was fit to proceed. I also note that there is no reference in her witness statement to Ms Halliday asking him directly whether he was fit to proceed, although she did indicate he could request breaks as needed. I also note that Ms Kerr at paragraph 15 of her statement states that “[Ms Halliday] asked him multiple times throughout the meeting whether he was fit enough to attend”. I find no record of Ms Halliday asking those questions in the notes of the meeting held on 24 November 2020, and therefore that she did not ask him directly whether he was fit to proceed. However, I also note the evidence that during the course of the investigation and disciplinary process the Claimant has requested that meetings should be postponed or rearranged due to health or other issues.[56]I further note that he was in receipt of a fit note on 13 November 2020 when he asked for the meeting planned for 17 November 2020 to be rearranged so that his TU representative could attend; there is no evidence that he raised any issues about his own health or fitness in connection with the request to rearrange the meeting, nor did he raise any such issues when the new date was given.[57]Given this, I find that if the Claimant had been feeling unable to attend or participate in the remote disciplinary meeting on 24 November 2020, on the basis of his previous behaviour it is more likely than not that he would not have agreed to attend the meeting whilst signed off by the GP. I also find that on the basis of his previous behaviour, the Claimant would have informed Ms Halliday either in advance or on the day of the meeting that he was unfit to proceed, or would have informed her during the meeting itself. I therefore do not accept the Claimant’s argument that the meeting on 24 November 2020 should not have taken place as he was in receipt of a fit note from the GP.[58]Ms Kerr confirmed in oral evidence that there had been no complaint by the customer SF. She also accepted that the Respondent had no evidence that the customer did not consent to the Claimant passing on her details.[59]On 17 December 2020 Ms Kerr met with CE who said he had told his team leader about the data protection breach when he was asked for information about the Claimant. He said he had not raised it earlier as he had forgotten about it, and that he had not been aware the incident was a data protection breach at the time. The notes of that meeting (pages 221-224) indicate that CE appeared generally unwilling to answer questions, and later on 17 December 2020 CE informed Ms Kerr that he had just resigned from the Respondent.[60]On 22 December 2020 Ms Kerr met with AH, who denied the Claimant had ever raised any mental health issues with him, beyond the problems with his son N.[61]On 5 January 2021 Ms Kerr met with Mr Davis. Mr Davis confirmed that whilst he was acting as the Claimant’s team leader, the Claimant had not raised any issues with his mental health or memory.[62]Ms Kerr said in evidence that there was no record of any conversation between the Claimant and KO’R about his mental health, which she would have expected to see recorded in some form if it had happened. KO’R had left the Respondent’s employment and it was not possible to discuss matters with her.[63]On 15 January 2021 Ms Kerr upheld the Claimant’s dismissal. Ms Kerr accepted that the Claimant was dealing with personal issues at the time of the data breach, but found that he had not provided evidence that he was suffering from memory loss or anxiety, and that he did not raise this with Ms Halliday during her investigation. Ms Kerr found that the Claimant had ample opportunity to raise his ability to participate in the meeting on 24 November 2020 or to say that he was unwell, but did not do so. Ms Kerr considered that the lack of a complaint by the customer about the breach, or the delay in CE reporting the incident, were both irrelevant to the conduct which led to dismissal. The matter of the customer’s consent to passing on her data was also irrelevant in terms of the breach of the data protection policies and HWW. Her letter (at page 248) states “As we discussed during the course of our meeting, the customer in question never made a complaint and this has never been suggested at any stage. In addition, for the avoidance of doubt, as [Ms Halliday] confirmed in her outcome to you, although you have said that the customer gave their consent to you passing on their details, there is no evidence of this and, in any event, even if the customer had given their consent this does not change the fact that your actions were a breach of data protection”.[64]Ms Kerr also considered that CE’s possible motivations in raising the 2 October 2019 incident were irrelevant, and in this context noted that Ms Halliday had dismissed the other allegations against the Claimant in part due to concerns about the credibility and motivations of the witnesses.[65]In oral evidence the Claimant said that he believed Mr Davis and Ms Halliday would have been aware of his health issues due to the letter(s) from Dr DK, and therefore he did not raise them with either Mr Davis or Ms Halliday. The Claimant accepted that Ms Kerr had considered these matters as part of the appeal.
Relevant law
[66]Section 94 ERA confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the Respondent under section 95, but in this case the Respondent accepts that it dismissed the Claimant on 25 November 2020.[67]Section 98 ERA deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the employer shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the employer acted fairly or unfairly in dismissing for that reason.[68]In this case it is not in dispute that the Respondent dismissed the Claimant because it believed he was guilty of misconduct. Misconduct is a potentially fair reason for dismissal under section 98(2). The Respondent has satisfied the requirements of section 98(2).[69]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[70]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) ERA in the decisions in Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563). Findings of fact and associated conclusions Genuine belief/permissible reason[71]I find that the Respondent, in the persons of Ms Halliday and Ms Kerr, held a genuine belief that the Claimant was guilty of misconduct, and that the relevant misconduct fell within the scope of the Respondent’s permissible reasons for dismissal. Their written and oral evidence was clear about why they dismissed, and included repeated references to the Respondent’s data protection policies, HWW, and the Conduct Policy. I find that they formed the genuine belief that the Claimant breached the Respondent’s data protection policy by texting the customer’s details to CE using his personal mobile, and also by writing those details in his personal mobile as this personal mobile was not Sky Approved Collateral.[72]I accept the Respondent’s evidence that the Conduct Policy entitled it to dismiss the Claimant as a result of the gross misconduct of which it genuinely believed he was guilty. I found no evidence that there was any other reason for the decision to dismiss the Claimant apart from the reason stated in the letter dismissing him. This finding is supported by the clear evidence that only the data protection breach was ultimately upheld. Reasonable grounds for belief[73]The genuine belief was formed by the Respondent after extensive investigations, and two hearings. The Claimant admits sending the text with the customer’s details using his personal mobile, and writing her details on his personal mobile. Ms Kerr conducted further investigations after her meeting with the Claimant on 10 December 2020 prior to forming her view. Whilst there was some issue with regard to the relevance of the customer’s consent in the decision to dismiss, I find that this was rectified by the appeal hearing.[74]The dismissal and appeal letters were clear in finding that the Claimant had breached the Respondent’s data protection policies, and the Claimant accepted that he had done so.[75]I also find, given the clarity of the Respondent’s policies with regard to handling of customer data and the clarity of the possible sanctions for breaching that policy, that breach of the data protection policy was a potentially fair reason to dismiss the Claimant. I accept the Respondent’s unchallenged evidence (Ms Halliday’s statement paragraph 20) that the Claimant was aware of the potential financial and reputational consequences to the Respondent as a result of a data protection breach. Reasonable investigation[76]The Claimant contends that the Respondent did not carry out a reasonable investigation, referring to the lengthy period taken to carry out the investigation and conclude the disciplinary process, and his view that his mitigation was not taken into account (including his mental health concerns, the circumstances in which the breach occurred, the customer’s consent, and the motivations of those who made the allegations). The Respondent contends that the investigation was reasonable.[77]The Respondent has clear policies on how investigations, conduct, and disciplinary matters should be carried out. It took great steps to investigate all the allegations made against the Claimant. This is evidenced by the number of meetings held by Mr Davis with the relevant parties, including RD, CE and the Claimant, as well as the further meetings held by Ms Kerr after the appeal hearing. However, this process, which included repeated interviews with a range of witnesses, had the result that new allegations and information continued to appear during the investigation stage. As part of the investigation process, there is limited evidence that the Respondent sought to explore the possible motivations of RD and CE in making the allegations against the Claimant during the conduct of the second investigation. It is troubling that RD’s allegations were made only two days after the Claimant’s first conduct meeting, and his being issued with the Final Written Warning, when considered together with the evidence provided by the Claimant about the difficulties in his working relationship with RD. I note that these difficulties all arose before RD made the allegations against the Claimant. I accept the Claimant’s evidence that his working relationship with RD was difficult, and find that the Respondent did not take reasonable steps to explore those difficulties sufficiently as part of the second investigation.[78]Inextricably linked to the way in which the allegations against the Claimant came to light is the length of Mr Davis’ investigation. I accept his evidence (paragraph 15 of his statement) that there were some delays outside his control, including Christmas, Covid19, and simple logistics, but I also note that there were a number of delays during that 5 month investigation. I find that his explanations for the delays are insufficient to render this part of the process objectively reasonable. In reaching this view, I take into account the lack of any clear explanation for the gap of some 4 weeks between the interview with CE on 7 January 2020 and the second interview with RD on 5 February, the period of some 6 weeks between the interview with the Claimant about the data protection breach on 15 April 2020 and the decision to proceed with the allegations which was made on 28 May 2020, without any clear evidence as to why it took 6 weeks to decide to proceed; I note in particular that there is no evidence of any further interviews with any witnesses between 15 April 2020 and 28 May 2020.[79]Of most concern, however, is the period between the first planned disciplinary meeting on 4 June 2020 which did not take place, and Ms Halliday’s letter dated 5 November 2020. I find that there is no evidence of any progress with the investigation or attempts to contact the Claimant with regard to the disciplinary meeting until Ms Halliday’s letter dated 5 November 2020. This is notwithstanding the undisputed evidence that the Claimant had been in contact with the Respondent on 1 July 2020 to raise grievances, and attended a remote hearing to discuss those grievances on 28 August 2020. I accept the undisputed evidence that there was a fit note in relation to 4-30 June 2020. However, there is no evidence of any attempts to arrange a further disciplinary meeting before the letter dated 5 November 2020, and in particular no evidence in a large bundle of documents of the Respondent contacting the Claimant with regard to the disciplinary process between 4 June 2020 and 5 November 2020. I find this period of some 5 months without evidence of contact or attempted contact surprising, and at odds with the requirement for an investigation to be reasonable. In reaching this conclusion I note the Respondent’s own Conduct Policy which states at page 65 that “On-going sickness absence may not be enough of a reason for you not to attend a meeting”. To my mind this implies that the Respondent would keep an employee’s sickness absence during a disciplinary process under review. Whilst the Claimant may have been providing fit notes during that period, he was clearly in contact with the Respondent and attended a remote grievance meeting on 28 August 2020 at which Ms Halliday was note taker. Given all this, I find that the delay between the first planned disciplinary meeting on 4 June 2020 and Ms Halliday’s letter to the Claimant dated 5 November 2020 was objectively unreasonable, and falls outside the range of reasonable responses. This is due to the overall length of time that it took to carry out the investigation, and in particular the period of time during which there was no evidence of any attempt by the Respondent to contact the Claimant about the investigation.
Remedy
[80]Due to time constraints, I did not hear detailed specific submissions with regard to remedy.[81]The Tribunal will decide the remedy for unfair dismissal at a further hearing. This will include consideration ofa. the original application for re-engagementb. the amount of any reduction in the compensatory award for unfair dismissal to be made under the principles in Polkey v AE Dayton Services Limited 1988 ICR 142c. the question of whether the Claimant contributed to his dismissald. the question whether any adjustment should be made under section 207A(2) Trade Union and Labour Relations (Consolidation) Act 1992 for failure to follow the requirements of the ACAS Code of Practice on Disciplinary and Grievance Procedures. EJ Swaffer Date 14 July 2022 The Claimant was not seeking re-instatement.[2]The Claimant’s application for re-engagement is not well founded and fails.[3]The Claimant is entitled to a basic award as compensation for his dismissal, which will be reduced by 50% due to his contributory conduct, in accordance with Section 122(2) Employment Rights Act 1996.[4]The basic award is calculated on the following basis:a. Start of employment: 7 August 2017b. Effective date of termination: 25 November 2020c. Number of years agreed continuous service: 3 (period from 7 August 2017 to 25 November 2020)d. Claimant’s age at dismissal: 39e. Claimant’s agreed gross weekly pay: £560.20f. Maximum gross weekly pay in 2020/2021: £538g.£538 x 3 years = £1614h.£1614 x 50% = £807[5]The Claimant is not entitled to a compensatory award as there is no evidence of any loss sustained by him in consequence of the dismissal insofar as that loss is attributable to action taken by the Respondent, in accordance with Section 123(1) Employment Rights Act 1996.[6]The Respondent is ordered to pay the Claimant the sum of £807 gross within 14 days of this judgment. 10.2 Judgment - rule 61 February Case No: 2300507/2021 JUDGMENT having been sent to the parties on 4 November 2022 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:
Remedy
[1]This was a hearing to decide the remedy following my judgment sent to the parties on 14 July 2022 (the liability judgment), where I found that the claimant had been unfairly dismissed by the respondent.[2]At the remedy hearing, I heard sworn evidence from the claimant, and from the respondent’s witness Ms Margaret Kerr.[3]The issues to be considered at the remedy hearing were as follows:a. The claimant’s original application for reengagement and an application made today for reinstatementb. the amount of any reduction in the compensatory award for unfair dismissal to be made under the principles in Polkey v AE Dayton Services Limited 1988 ICR 142c. the question of whether the claimant contributed to his dismissald. the question whether any adjustment should be made under section 207A(2) Trade Union and Labour Relations (Consolidation) Act 1992 for failure to follow the requirements of the ACAS Code of Practice on Disciplinary and Grievance Procedures. Preliminary matters[4]Prior to the hearing, the respondent submitted details of vacancies at its branches for retail sales advisors (page 122), including at White City, Crawley, and Ashford. During the hearing, it was clarified that the Ashford vacancy related to Ashford, Kent, rather than Ashford, Middlesex.[5]At the start of the hearing, the respondent indicated that the retail sales advisor vacancies at White City had been “cancelled” on 21 October 2022, and there were no longer any vacancies at White City. This change had not been reflected in Ms Kerr’s witness statement dated 24 October 2022 as Ms Kerr was only informed of the change in available vacancies on the day of the remedy hearing.[6]By virtue of his position statement dated 24 October 2022 (pages 126-127), the claimant was seeking reengagement. At the start of the remedy hearing he stated that he was also seeking reinstatement, but did not actively pursue this during the hearing. I nevertheless considered his applications for reinstatement and reengagement.[7]The claimant was seeking reinstatement or reengagement as a retail sales advisor in Crawley, where there were vacancies. His preferred choice would have been White City, but there were no vacancies there. Ashford, Kent was not convenient. At the start of the hearing, the claimant indicated that he would also be interested in call centre roles, as well as retail sales advisor roles. The claimant had not raised this prior to the hearing, and the respondent had no information to hand about any vacancies for call centre roles.[8]I first considered the applications for reinstatement and reengagement. Once I had announced my decision with regard to those applications, I then proceeded to consider compensation.
Findings of fact
[9]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. References to page numbers are to the agreed bundle of documents for the remedy hearing.[10]The claimant was dismissed for gross misconduct on 25 November 2020 (the effective date of termination or EDT). He was 39 when he was dismissed. At the liability hearing, I found that the respondent had a genuine belief that the claimant was guilty of misconduct (liability judgment paragraph 71) and that this was the reason for his dismissal (liability judgment paragraph 72). This belief was formed after an extensive investigation and two hearings (liability judgment paragraph 73). The misconduct was that the claimant had breached the respondent’s How We Work and Data Protection policies (the Policies) by storing a customer’s details in his personal mobile, and sharing that customer’s details by sending those details to a colleague. The claimant has always accepted the conduct and that he breached the Policies by his conduct, but offered mitigation for his conduct. I found that the respondent failed to carry out a reasonable investigation due to the overall length of time the investigation took and the resulting delay to the process (liability judgment paragraphs 78 and 79).[11]The claimant believes the respondent’s actions in dismissing him for his accepted conduct were “harsh and unreasonable”. The claimant was seeking to revive his submissions from the liability hearing that in deciding to dismiss him the respondent did not take into account what he believes were mitigating circumstances (these are that he believed that by his actions he was doing his best to serve the customer and promote the respondent’s business, and said that he had the customer’s consent to act as he did; he was waiting at an airport travelling to a funeral on the day he committed the conduct; he had mental health difficulties at the time). The issues of whether the respondent was harsh and unreasonable in dismissing the claimant for his accepted conduct and the respondent’s attitude to the claimant’s submitted mitigating circumstances are not issues for the Tribunal today in so much as they formed part of his evidence and submissions at the liability hearing, and my findings at that hearing. The submitted mitigating circumstances are relevant only to my findings as to whether the claimant caused or contributed to his dismissal, such that any award made to him might be reduced. Reinstatement and reengagement[12]The claimant is seeking reinstatement or reengagement in his previous role as a retail sales advisor, at the respondent’s site in Crawley. He is also seeking reengagement in a call centre role. I considered these applications first. When he was dismissed, he was working at the respondent’s site in Kingston Upon Thames. The respondent did not provide details of any vacancies in Kingston Upon Thames, and the claimant did not submit that he should be reinstated or reengaged at that site.[13]The claimant did not set out precisely the nature of the order he is seeking. As noted above, the claimant has always accepted the conduct which led to his dismissal. The claimant has also always accepted that he was fully aware of the Policies, and had received training on those Policies. His breach of the Policies was not due to a gap in learning or a need for retraining in the Policies, as the claimant was fully are of these. In cases of dismissal for gross misconduct, the key issue is the respondent’s perception of the claimant’s conduct.[14]The respondent did not consider that the claimant was suitable for reinstatement or reengagement as a retail sales advisor, given the circumstances of his dismissal and its related concerns about him having access to customer data. In addition, the respondent was not willing to consider the claimant for reengagement in a call centre role as it would also involve handling customer data, similar to a retail sales advisor role.[15]The reasons for the claimant’s dismissal were his admitted conduct and his breaches of the Policies. I find that the respondent devised and implements the Policies to ensure that it meets its commitments to customers, and that it is compliant with relevant data protection regulations and legislation. I find that non-compliance with the relevant regulations and legislation, and therefore with the Policies, could incur consequences for the customer and also a serious reputational risk for the respondent, as well as a risk of financial penalties for the respondent. I find that as a result of these potential risks, the respondent stresses the importance of the Policies to employees and provides training.[16]I find that by virtue of his admitted conduct in breach of the Policies which led to his dismissal, the respondent has lost trust and confidence in the claimant. I find that the respondent believes that the claimant’s conduct which led to his dismissal demonstrated his disregard for the respondent’s designated way of handling of customers’ personal details, and also his disregard for the potential consequences for the customer of that data being lost, stolen, or used inappropriately because the respondent did not protect it. I find that the respondent also believes that the claimant had shown disregard for the consequences of his actions for the respondent, both in terms of potential damage to its reputation and potential financial loss in the form of penalties for non-compliance with data protection legislation and regulations. I find that as a result of his admitted conduct and the respondent’s related beliefs about his conduct, the respondent has lost trust and confidence in the claimant because the retail sales advisor role requires employees to handle customer data (including personal details) daily, and that given his conduct the respondent does not trust the claimant to do so in accordance with the Policies. I find that a call centre role would also involve the handling of customer data, and I find that the respondent’s beliefs and concerns about the claimant handling customer data would be the same as in relation to a retail sales advisor role. I find that the respondent relies on customers being confident in its Policies and procedures, and relies on its retail sales advisors and call centre staff to handle customer data correctly and safely, in accordance with the Policies. I find that all this is evidence of the respondent’s loss of trust and confidence in the claimant.[17]I considered the practicability for the respondent of reinstating or reengaging the claimant in a retail sales advisor role in Crawley. I found that it was not practicable for the respondent to reinstate or reengage the claimant in Crawley. I accepted the respondent’s submissions that there had been a breakdown in the relationship of trust and confidence between employer and employee, by virtue of the claimant’s conduct, which was sufficient to render reinstatement or reengagement impracticable. For the same reasons, I also find that it would not be practicable for the respondent to reengage the claimant in a call centre role. I find that due to the respondent’s genuine belief that the claimant is guilty of gross misconduct, reinstatement or reengagement would be impracticable.[18]I find that the claimant caused or contributed to his dismissal by virtue of his accepted conduct (saving a customer’s details to his personal mobile and sharing those details with a colleague) and thereby in breaching the Policies. He was dismissed because of his conduct, and this conduct was in breach of the Policies. I find that the respondent, as a result of the claimant’s conduct and breach of the Policies, has lost trust and confidence in the claimant (paragraph 16 above). Given this loss of trust and confidence, and the claimant’s cause or contribution to his dismissal, I find that it would not be just to order his reinstatement or reengagement.[19]I find that the respondent would have dismissed the claimant in any event had a fair procedure been followed. The claimant accepted that his conduct was in breach of the Policies. I find that had the unfairness (the length of the process and therefore the delay) not happened, the claimant would have been dismissed sooner than he was. I find that the respondent continues to have a genuine and rational (reasonable) belief that the claimant was guilty of gross misconduct, as set out in detail in the liability judgment. I find that the respondent’s reasonable belief was based on reasonable grounds after an extensive investigation, a disciplinary hearing and an appeal hearing. Compensation[20]The claimant was uncertain about the information he had provided in the revised schedule of loss (pages 66-67), and was unable to provide details of the losses he sought to claim in particular with regard to loss of benefits that came with employment (revised schedule of loss pages 66-67). He was also unclear about the benefits he has received since his dismissal; he said he had received universal credit since January 2021 for his children and himself, but was unclear about the details.[21]The claimant has not been employed since he was dismissed almost two years ago. The claimant did not provide evidence of any job applications since his dismissal to support his claim for future losses by showing attempts to mitigate any such losses. The claimant said that he applied for jobs online and by phone. In his position statement the claimant said he had applied for jobs from the EDT until November 2021 (paragraph 8), although in evidence he said that this was an error and should have read November 2022; he had applied for between 30-50 jobs over the 2 years since his dismissal. These included customer service and sales roles, and working for estate agents and charities. He had only had one or two interviews. Things had been slow due to the pandemic. He had studied and achieved qualifications, a police course and a law qualification, although it later emerged in evidence that he had completed the police course prior to his dismissal. He was considering a career change and entering the legal profession; he had had some work experience. He said that his job applications had “slowed down” since he started a law degree with a possible view to changing career.[22]I accept that the pandemic will have impacted on the claimant’s job search. However, I also find that the claimant had decided to focus on studying for a law degree and has not been entirely focused on seeking a new job. I find that the claimant was contemplating a significant career change. Whilst the claimant is entitled to make that decision, it would not be just and equitable for the respondent to be responsible for any related financial losses as the claimant studies with a view to changing his career. I find that if the claimant had carried out a sustained search, a period of 8 months to find a new job would be appropriate, taking into account the impact of the pandemic.[23]I find that the claimant has failed to provide evidence of loss of benefits that came with employment, which he quantified at £5512 (page 66). At the outset of the liability hearing the claimant confirmed that the respondent had paid him all sums owing on termination (liability judgment paragraph 8). He did not raise any argument that he had not been properly paid whilst on suspension. The claimant suggested today that he had not received commission during the period of his suspension and that this commission amounted to 2 or 3 times his basic salary. Details of this loss were not included in his position statement (pages 126-127). The suspension letter (liability bundle page 102) states that the claimant would remain on full pay whilst suspended, and that this was calculated at his basic pay plus an average of any commission/bonus/incentive payments over the last 12 weeks. I find that the claimant did receive pay for commission whilst suspended.[24]The claimant did not provide evidence to support his claim made during the hearing with regard to losses with regard to the respondent’s share scheme, or his claim for losses with regard to health insurance. I find that there is no proven evidence of any such loss.[25]I find that the claimant was paid whilst suspended, as set out above (paragraph 23). I find that if the respondent had followed a fair procedure, the claimant would have been dismissed sooner than the EDT as the unfairness was due to the delays in the procedure. In terms of loss of wages to today’s date and future loss of income, I find that the claimant was paid by the respondent for a longer period than he would have been if a fair procedure had been followed.[26]I find no evidence that the claimant has suffered any financial loss in consequence of his dismissal that is attributable to action taken by the respondent. He was paid whilst he was suspended, and I find no evidence that the amount he was paid was less than that to which he was entitled, and he was dismissed after a lengthy investigation and two hearings. The unfairness in his case relates only to the delays in the process. Had the dismissal been fair, I find that the respondent would have stopped paying the claimant sooner as he would have been dismissed at an earlier date. I find that as a result of the unfairness, the claimant was paid for longer than would otherwise have been the case. I find that the respondent’s actions in dismissing him unfairly did not cause him any additional loss. In reaching this finding, I note that the compensatory award is not intended to be punitive, and is only intended to compensate proven financial loss. I find no such loss in this case. I find that the claimant in fact benefitted financially from the respondent’s actions and did not suffer any loss in consequence of his dismissal, as the delay and resulting unfairness meant that he was paid for a longer period than he would have been if the dismissal had been fair.[27]I explained the implications of the judgment in Polkey to the claimant. I do not accept his submissions that if the process had been fair he would have kept his job. There is no evidence to support this submission. My findings at the liability hearing are clear that the respondent had a genuine belief that the claimant was guilty of misconduct, and that the relevant misconduct fell within the scope of the respondent’s permissible reasons for dismissal (liability judgment paragraphs 71 and 72). The respondent had reasonable grounds for its belief, and the claimant was dismissed after a lengthy investigation and disciplinary process. It is the length of this process, and the resulting delay, which rendered his dismissal unfair.[28]The claimant submitted that there should be no Polkey reduction, or that if there were a reduction it should be 50%. The respondent submitted that there should be a 100% Polkey reduction as the claimant would have been dismissed in any event.[29]The respondent accepted that it had breached the ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code) by virtue of my earlier findings about the unreasonable delay. It submitted that it would not be just and equitable to make an uplift given that the only breach was the delay, and that there was no finding of any malice on the part of the respondent with regard to the delay. If I disagreed, the respondent submitted that a maximum uplift of 10% would be just and equitable given that the delay was the only breach.[30]I explained the ACAS Code to the claimant and my discretion to make an uplift of up to 25% in the compensatory award. Given that the respondent accepted that it had breached the ACAS Code, the claimant submitted that an uplift of 25% would be just and equitable.[31]In terms of contributory fault, I find that the claimant caused or contributed to his dismissal by his culpable or blameworthy conduct, namely his storing and sharing the customer’s details in his personal mobile, in breach of the Policies. He accepts his conduct (liability judgment paragraph 73) and accepts that he was aware of the Policies and the potential consequences of his conduct (liability judgment paragraph 75). I find that the claimant’s conduct was blameworthy as he was fully aware of the Policies when he committed the conduct. I find that the claimant’s blameworthy conduct was the reason and the only reason for his dismissal, and that he therefore caused or contributed to his dismissal. I find that the delay on the part of the respondent was not the cause for his dismissal.[32]I note the claimant’s submissions regarding mitigation, namely travelling to a funeral and his mental health difficulties. I find that these mitigating circumstances are relevant in considering the extent to which he caused or contributed to his dismissal and any related reduction to any awards for contributory conduct. I find that in all the circumstances the claimant’s blameworthy conduct caused or contributed to his dismissal, and that any related awards should be reduced by 50%. In reaching this figure, I do not accept his submissions with regard to the customer’s consent to his actions as I do not find that it is relevant and does not amount to mitigation. Legal principles[33]Section 113 Employment Rights Act 1996 (ERA) provides that an employee who has been unfairly dismissed may seek an order for a) reinstatement or b) reengagement. Section 114 ERA contains the power to make an order for reinstatement. Section 116(1) ERA provides that the Tribunal should first consider reinstatement, taking into account a) whether the claimant wishes to be reinstated, b) whether it is practicable for the employer to comply with an order for reinstatement, and c) where the claimant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. Section 114(1) ERA provides that a reinstatement order must require that the employer treat the complainant in all respects as if he had not been dismissed. This means that the complainant must be returned in all respects to his contractual position with the respondent.[34]Section 116(2) ERA provides that if the Tribunal decides not to make an order for reinstatement, it should then consider whether to make an order for reengagement. Section 115 contains the power to make an order for reengagement. Section 115(1) provides that reengagement need only be in employment comparable to that from which the employee was dismissed, or other suitable employment.[35]Section 116(3) provides that in considering whether to make an order for reengagement the Tribunal shall take into account a) the claimant’s wishes about the nature of the order to be made, b) whether it is practicable for the employer to comply, and c) where the claimant’s conduct caused or contributed to some extent to their dismissal, whether it would be just to make an order, and (if so) on what terms.[36]Whether it is practicable to make an order for reemployment (either reinstatement or reengagement) is a question of fact for the Tribunal, which has the discretion to decide whether to make a reemployment order. A breakdown of trust and confidence between employer and employee may be sufficient to render reemployment impracticable. Wood Group Heavy Industrial Turbines Ltd v Crossan 1998 IRLR 680 EAT indicates that a genuine belief in relation to the claimant’s conduct is sufficient to present a barrier to reengagement. The relevant test when considering whether reemployment is practicable following dismissal for misconduct is whether the employer genuinely and rationally believed that the claimant was guilty of the misconduct. Where an employee caused or contributed to the dismissal, the Tribunal must consider whether it would be just to make an order for reemployment. Contributory conduct is also relevant to the question of practicability. See Kelvin International Services v Stephenson EAT 1057/95.[37]Section 118(1) ERA provides that where a Tribunal makes an award of compensation for unfair dismissal, that award shall consist of a) a basic award calculated in accordance with Sections 119-122 and 126 ERA, and b) a compensatory award calculated in accordance with Sections 123, 124, 124A and 126 ERA.[38]The basic award is calculated in units of a week’s pay, as defined in Sections 220-229 ERA. The total will usually depend on the employee’s age and length of continuous service and the relevant amount of a week’s pay. Section 119 ERA sets out the method of calculating years of continuous employment, counting back from the EDT (Section 119 (1) ERA) and a week’s pay, which depends on the employee’s age (Section 119(2) ERA). In this case the relevant formula is set out in Section 119(2)(b), one week’s pay for each year in which the employee was below the age of 41 but not younger than 22. Each year there is a maximum amount set for a week’s gross pay. At the EDT in this case, the maximum amount for a week’s gross pay was £538.[39]Section 123(1) ERA provides that the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.[40]In Norton Tool Ltd v Tewson 1972 ICR 501, NIRC it was established that the compensatory award should include immediate and future loss of earnings, expenses incurred as a consequence of the dismissal, loss of statutory employment protection rights, and loss of pension rights. It is the employee’s duty to provide evidence of his losses. In Hamer v Kaltz Ltd EAT 0502/13 the EAT stated that the Tribunal must have regard to what the employee has lost in consequence of the dismissal. This will require findings as to what would have occurred but for the dismissal. In King and ors v Eaton Ltd (No 2) 1998 IRLR 686, Ct Sess it was stated that in cases where the employer’s only failing was procedural, it may be reasonably straightforward to establish what would have happened had a fair procedure been adopted, and to award compensation accordingly. Morgans v Alpha Plus Security Ltd 2005 ICR 525 EAT provides that the purpose of the compensatory award is confined to compensating only proven financial loss and is not to be used to penalize the employer.[41]In Polkey v AE Dayton Services Ltd 1998 ICR 142 HL, it was held that an employer will not be able to avoid a finding of unfair dismissal by pleading that a failure of procedure made no difference to the outcome of the dismissal process. However, in all such cases, the Tribunal is entitled, when assessing the compensatory award payable in respect of unfair dismissal, to consider whether a reduction should be made to the award on the ground that the lack of a fair procedure made no practical difference to the decision to dismiss.[42]Where a dismissal is found to be unfair, the employer and employee’s compliance with the ACAS Code of Practice on Disciplinary and Grievance Procedures is taken into account when determining whether there should be an adjustment to any compensatory award made under Section 207A(2) Trade Union and Labour Relations (Consolidation) Act 1992.[43]Section 122(2) ERA provides that where any conduct of the complainant before the dismissal 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(6) ERA provides that 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.[44]In Steen v ASP Packaging Ltd 2014 ICR 56, EAT, the EAT set out the correct approach under Section 122(2), stating that the Tribunal should identify the conduct which is said to give rise to possible contributory fault, decide whether that conduct is culpable or blameworthy, and decide whether it is just and equitable to reduce the amount of the basic award to any extent. Conclusions Reinstatement
Conclusions
[45]I first considered the claimant’s application for reinstatement, in accordance with Section 116(1) ERA. I note that the claimant is primarily seeking reemployment (either reinstatement or reengagement) as a retail sales advisor in a different location, Crawley, where there is a vacancy. I have considered the practicability of making an order for reinstatement. In this case, I am satisfied that the respondent has a genuine and rational belief that the claimant is guilty of gross misconduct (paragraph 20 above). The claimant himself, whilst he has offered explanations to mitigate his behaviour, has accepted his conduct and that that conduct breached the respondent’s Policies. I am satisfied that the claimant’s conduct, in breaching the Policies, has rendered reinstatement impracticable because the claimant’s conduct has broken the relationship of trust and confidence between the respondent and the claimant (see paragraphs 17 and 18 above). I am further satisfied that the claimant’s conduct (his admitted behaviour in breaching the Policies) caused or contributed to his dismissal (paragraphs 21 and 34 above), and I am satisfied that it would be neither just nor equitable to order the claimant’s reinstatement (paragraph 18 above). In forming this view, I am mindful of the decision in Wood Group Heavy Industrial Turbines Ltd v Crossan. The claimant’s application for an order for reinstatement as a retail sales advisor at the respondent’s site in Crawley is unsuccessful and fails. Reengagement[46]I then considered the claimant’s application for an order for reengagement as a retail sales advisor in Crawley, or in a call centre, in accordance with Section 116(3) ERA. I find that it would not be practicable to make such an order, given my finding that the respondent has a genuine and rational belief that the claimant is guilty of misconduct (paragraph 20 above), and my finding that the claimant’s conduct has rendered reengagement impracticable as it has broken the relationship of trust and confidence between the respondent and himself (paragraphs 17 and 18 above). I am satisfied that the claimant’s conduct caused or contributed to his dismissal (paragraphs 21 and 34 above), and I am satisfied that it would be neither just nor equitable to order the claimant’s reengagement (paragraph 18 above). In forming this view, I am mindful of the decision in Wood Group Heavy Industrial Turbines Ltd v Crossan. The claimant’s application for an order for reengagement as a retail sales advisor at the respondent’s site in Crawley, or in a call centre, is unsuccessful and fails. Compensation[47]I find that the claimant is entitled to a basic award. It is accepted that the relevant figures for calculating the basic award are 3 years and a maximum gross weekly pay of £538. The starting point for the basic award is therefore £1614 gross (£538 x 3).[48]I find that it is just and equitable to reduce the amount of the basic award given the claimant’s contributory conduct, as provided for in Section 122(2) ERA. I find that the claimant’s blameworthy conduct (paragraph 31 above) was contributory as he accepts and has always accepted that he breached the respondent’s Policies, and that he was fully aware of and had been trained in those Policies. I consider that it is just and equitable to reduce the amount of the basic award by 50% to reflect the claimant’s blameworthy contributory conduct, taking into account the circumstances in which the blameworthy conduct occurred and my findings with regard to his mitigating circumstances (paragraphs 21, 34 and 36 above).[49]The basic award is therefore calculated as £1614 gross less 50% = £807. I order that the respondent pays to the claimant £807 gross within 14 days of the date of the original remedy judgment.[50]I do not make a compensatory award in this case. The claimant raised various heads of loss, however I do not find a link between these heads of loss and his dismissal. The object of the compensatory award is to compensate the employee for financial loss as if he had not been unfairly dismissed. The purpose of the compensatory award is to compensate and compensate fully, but not to award a bonus to the employee.[51]This is a case where the claimant was suspended on pay which took into account other matters such as commission and bonus. He was paid by the respondent for the entirety of his suspension, up until the EDT. At the liability hearing, he stated that all monies due on termination had been paid. The reason that the claimant’s dismissal was unfair was the respondent’s delay in carrying out the process. I therefore considered what loss flowed from that delay, in accordance with Section 123 ERA. I find that if the respondent had followed a fair process, the claimant would have been dismissed at an earlier date (paragraph 25 above).[52]I find that the claimant did not suffer a loss due to the respondent’s delay; indeed, I find that he was paid by the respondent for a longer period than he would have been if there had been no delay (paragraphs 24-26 above). The claimant has not therefore proven that he suffered a loss due to the respondent’s delay. I find that there was no loss consequent on the claimant’s dismissal attributable to the action taken by the respondent. In all the circumstances it is therefore neither just nor equitable to make a compensatory award in this case.[53]Given the finding at paragraph 52 above, it is not necessary for me to consider the matter of the compensatory award further. However, for the avoidance of doubt, had I made a compensatory award, I would have made a Polkey reduction of 90% given my findings that the claimant would have been dismissed in any event had a fair procedure been followed (paragraph 19 above). I would have awarded an ACAS Code uplift of 10% to reflect the respondent’s admitted breach of the ACAS Code. I would have reduced any compensatory award by 50% to reflect a just and equitable reduction for the claimant’s causing or contributing to his dismissal by his accepted blameworthy conduct and breach of the Policies. EJ Swaffer