Employment Judge HeathMr N Ashley (instructed by Counsel) for respondentDate 14 June 2024
JUDGMENT
The claimant’s complaint of unfair dismissal is not well-founded and is dismissed
REASONS
Conclusions
[1]The claimant, who was a driver/operative of a refuse vehicle for the respondent, claims unfair dismissal. He says that he was dismissed unfairly in that that were a number of procedural defects in the disciplinary process, and that dismissal was a disproportionate sanction inconsistent with other examples of alleged misconduct. The respondent says that it dismissed the claimant fairly for a number of charges of gross misconduct following a fair procedure. It says he drove dangerously, threatened a colleague and then went absent without leave.
The issues
[2]The issues to be determined by the tribunal were set out in the case management summary of Employment Judge McLaren sent to the parties on 21 August 2023. In respect of liability, they were:1.1 What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed1.2 If the reason was misconduct, did the respondent act reasonably or unreasonably in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s will usually decide in particular, whether:1.2.1 there were reasonable grounds for that belief;1.2.2 at the time the belief was formed the respondent had carried out a reasonable investigation;1.2.3 the respondent otherwise acted in a procedurally fair manner;1.2.4 dismissal was within the range of reasonable responses.
Procedure
[3]In the remedy section of the list of issues the tribunal was to determine, if it found that the dismissal was procedurally unfair, there was also the issue of whether there was a chance that the claimant would have been dismissed fairly anyway if a fair procedure had been followed (a Polkey reduction); and also whether the claimant caused or contributed to his dismissal by blameworthy conduct.[4]The parties agreed at the start of the hearing that these were the issues I was to determine. I indicated that I proposed dealing with liability (including Polkey and contributory fault) first, making a decision on that, before moving on to remedy if appropriate. The parties agreed with this approach.
Procedure
[5]A timetable for the hearing had been set out in EJ McLaren’s case management summary that would have meant that I would give an oral decision at the hearing. Submissions concluded at 3.15 on the second day. There was some discussion about whether I might be able to give an oral judgment at 4pm. Mr Spalding indicated that he would struggle to sit past 4pm because of medical issues, and that in any event he would be likely to be asking for written reasons. I therefore reserved my decision.[6]This matter had been listed for a final hearing previously, which could not go ahead. The respondent had prepared a bundle for that hearing in August 2023 and supplied to the claimant the witness statements of:a. Mr D Stuart, former Operations Director; andb. Mrs S Abbott, Head of HR and Organisational change. Both these witnesses gave oral evidence.[8]The claimant provided his own bundle and witness statements from himself and Mr Spalding on 27 May 2024 (having had the agreed bundle and the respondent’s statements since August 2023). Mr Ashley made observations about late service of an additional bundle and witness statements, and the relevance of much of the evidence to the issues in the case, but ultimately did not take any point about the late service of evidence. The claimant and Mr Spalding gave oral evidence.[9]Mr Ashley cross examined the claimant about numerous attempts he said he made to provide the claimant and Mr Spalding with a file containing CCTV evidence. It was not clear whether the claimant accepted that he had made such attempts. Mr Ashley forwarded 4 emails (sent to Mr Spalding during litigation) to the tribunal, which appear to support this contention.[10]Both parties made oral submissions at the end of the evidence, and I reserved my decision. The facts
Background
[11]The respondent is a joint-venture between Medway Council and Norse Commercial Services Limited, which provides refuse collection services to the public sector.[12]The claimant commenced employment with Veolia Environmental Services (UK) Ltd on 29 July 2013 as a driver/operative employed to drive refuse collection vehicles. His employment was transferred to the respondent under TUPE on 1 October 2019.[13]As part of the measures envisaged in the transfer, the respondent implemented all of their own policies and procedures from the transfer date, which included the disciplinary, grievance and appeal procedures. The disciplinary procedures applicable in previous employment had been non-contractual in nature.[14]A substantial proportion of the claimant’s witness statement and claimant’s bundle was devoted to numerous issues dating back to 2013. I have not found it necessary to make detailed findings of fact about these background matters in order to determine the issues in this case. In brief, however, I note that, following the transfer of employment to the respondent, the respondent raised a disciplinary issue with the claimant relating to an alleged failure to carry out daily vehicle checks in September 2020. Mr Spalding assisted the claimant during disciplinary proceedings and engaged in fairly lengthy correspondence on his behalf. During the course of this correspondence Mr Spalding requested the claimant’s personnel file, and the respondent was reluctant to provide this as their policies did not allow for accompaniment or representation other than as set out in their policies, and were keen not to breach data protection legislation. The disciplinary issues did not proceed to a formal determination. Policies[15]The respondent had a disciplinary procedure which set out how disciplinary issues would be investigated and dealt with. In particular, and in summary, it included provision for:a. An investigation of the facts, where an investigator would be appointed to establish facts as soon as possible. The accused employee may be required to attend an investigatory meeting. Statements may be obtained from witnesses and the gathering of other relevant evidence.b. Suspension may be imposed, or alternative duties identified.c. A disciplinary hearing could be convened, before which the employee would be informed of the nature of the allegations and any relevant evidence gathered. This would be chaired by a more senior manager than the investigator. The employee would be given the opportunity to answer the allegations made, call witnesses and present evidence in their defence or mitigation. There was a right of accompaniment at this stage by a fellow employee/worker or a trade union representative. No other right of accompaniment or representation was provided for in the procedures.d. Disciplinary rules gave non-exhaustive examples of gross misconduct which would normally result in summary dismissal. These included: i. Physically or verbally threatening or abusive behaviour, physical violence or the threat of physical violence; ii. Serious acts of insubordination, rudeness or inappropriate behaviour towards or in the presence of employees, contractors, business partners, investors or members of the public; iii. Breach of confidence or trust, the forging or unauthorised alteration of records or documents, or the disclosure of information for financial or personal gain of the employee or others; iv. Deliberate and sustained refusal to carry out reasonable, lawful and safe instructions, contractual requirements or to comply with Norse policies or procedures; v. Unauthorised absence from work where permission to be absent has been withheld; vi. Deliberate or reckless infringements of safety rules or practices which place the health and safety of the employee or others at serious risk;e. The right of appeal against disciplinary sanction.[16]This policy was broadly consistent with the ACAS Code of Practice on Disciplinary and Grievance Procedures. Disciplinary[17]On 26 January 2021 incidents occurred which gave rise to the disciplinary process which was to lead to the claimant’s dismissal.[18]These matters were brought to the attention of Mr Gardiner, a Waste Services Manager who reviewed CCTV footage of a refuse vehicle driven by the claimant on 26 January 2021. Each refuse vehicle has 4 CCTV cameras on it, two pointing forward and two pointing towards the rear of the vehicle. Mr Esposito, a Transport Manager, was appointed to investigate on 28 January 2021.[19]Mr Esposito’s methodology is set out in a Management Case which he was later to prepare. His initial action was to review CCTV footage from the vehicle driven by the claimant. He comments as follows: “I firstly reviewed the CCTV footage on David's vehicle, VX63 HFG, at 10:53:34, which shows that upon leaving the Medway Norse Depot, David approached a set of traffic lights on Pier Approach Road at 14mph which were green, the lights then turned amber at 10:53:37 and subsequently red at 10:53:40, at which point David's proceeds to drive through the red light and onto road A289 at 22mph. At 10:53:43 two vehicles that were travelling along the A289 had to break in as to not collide with the vehicle; which led to members of the public beeping their horn. I then reviewed further footage of the alleged incident which occurred several minutes later at 10:55:50. The CCTV footage from David's vehicle, VX63 HFG shows that he was travelling on A289 at 42mph, which was over the speed limit of 40mph. At which point he accelerates and overtakes Ashley's vehicle, VX63 HGC at 45 mph. Upon approaching the roundabout, David's reduces his speed to 42 mph, at this point a white van pulled into the right lane in front of David cutting him up. In reaction to this, David then pulled his vehicle into the left-hand lane, cutting up Ashley Perkins. This could have potentially led to a collision.”[20]Mr Esposito sought advice from HR, and was advised to suspend the claimant from driving duties. At 15.45 on 28 January 2021 Mr Esposito met the claimant in the presence of Mr Williams, a supervisor. He explained the allegations to the claimant. Mr Esposito set out in the Management Case that the claimant began to “get irate, making statements such as "I am going to win this" and "I am going to beat you", I asked him if he was threatening me, with which he replied "you will see next week".”[21]Mr Esposito set out that the claimant said he wanted to make a counter complaint about the driver of the other refuse vehicle, Mr Perkins. Mr Esposito said that he explained that the claimant was suspended from driving duties but would be obliged to carry out loading duties whilst suspended from driving duties. He said that the claimant left the office at 4.20 but never returned and have been absent without leave from work ever since.[22]Mr Spalding has described himself in documents in both bundles as a Property Consultant and an “Employment Consultant”. He set out in correspondence that he had an honours law degree, undertook the Bar Vocational course and had appeared in various fora including the High Court, but did not practice as a lawyer. He has known the claimant for a long time, having served in the Territorial Army with him. In his witness statement he sets out how he is involved in local politics, having been elected as a Councillor to Medway Council in May 2023. He described in his witness statement how he has taken a keen interest in the respondent organisation, in particular in relation to an what he describes as a lack of PPE equipment being supplied by them to staff during the pandemic.[23]Mr Spalding had at some stage been involved in assisting another of the respondent’s employees in an employment dispute. It is difficult to be sure, on the evidence, when this was, although Mr Spalding referred to it in correspondence relating to the claimant’s disciplinary issues in 2020.[24]On 28 January 2021 at 6.40pm Mr Spalding emailed various people within the respondent organisation, including HR representatives, setting out that they were quite aware he was “instructed and retained” by the claimant. He said that the claimant had never been provided a copy of his personnel file and contract of employment. He said that the claimant had been suspended from work without any paperwork. He said he had been advised of an allegation of dangerous driving, but no further details were provided. He made various observations about contractual provision allowing for moving an employee to alternative duties, and set out that there was no contractual provision for this, or training to carry out such duties. He said that he understood that there was “a very minor incident” that had taken place that day. He concluded the email “Christopher Spalding LLB (Hons) VR. Employment Consultant”.[25]On 29 January 2021 the claimant was sent a letter confirming that he had been stood down from driving duties pending an investigation into an allegation that he drove a vehicle in an unsafe manner by speeding upon approach to a roundabout, driving through a red light and switching lanes without due care. It was made clear that “as your role with Norse is as a Driver/Operative, you will be expected to fulfil your role as a Loader pending formal investigation”. He was told he would be written to in order to invite him to a formal investigation meeting where the allegations would be discussed in more detail. He was reminded of the employee assistance programme.
The law
[26]On 30 January 2021 Mr Spalding emailed various people within the respondent, including HR representatives. This was a lengthy email containing a number of observations, further comments about the alleged incident, and setting out Mr Spalding’s advice to the claimant to attend work on 1 February 2021 but not to undertake any duties that he was not contracted or trained to do.[27]The claimant was invited by Mr Esposito by letter bearing the date 1 February 2021 sent by recorded delivery to an investigation interview to take place on 4 February 2021. The tracking information suggests this letter was actually delivered and signed for by the claimant on 30 January 2021.[28]It is not entirely clear whether the claimant attended work on 1 February 2021, or whether he attended and left, refusing to carry out alternative duties. Determining this is not crucial to the issues I have to decide. On balance, I accept the evidence within the Management Case, that the claimant actually was absent without leave, rather than attended work. More to the point, this was the unchallenged evidence that was before the hearing officer (see below).[29]On 3 February 2021 Mr Esposito interviewed Mr Gardner, Mr Perkins, Ms Robinson and Mr Williams.[30]Within the bundle provided by the claimant a few days before the hearing before me, there is a letter dated 3 February 2020 (sic), almost certainly written on the claimant’s behalf by Mr Spalding, in which the claimant said he had been in contact with someone in the same household as someone who had been sent home and advised to get a Covid test. He said it would be inappropriate for him to attend any interviews, and asked for the interview to be rearranged. He complained that he had not been provided with his personnel file or contract or any evidence that he was required to undertake any duties other than driving. He said that Mr Spalding was retained by him and authorised to represent him in any dealings with the respondent. On the same day Mr Spalding emailed various people in the respondent saying that the claimant was a Luddite could not operate his mobile phone, did not have and email account and that he will not use telephone to communicate with the respondent. The only option given was to recognise Mr Spalding as a representative, or to send documents by post.[31]On 4 February 2021 Mr Esposito interviewed Mr Rayfield, Mr Basi, Mr Davies, Mr Kingslow and Mr Spencer. Summaries of these interviews were prepared by Mr Esposito and later provided to the interviewees, who signed them. In some of the interviews some hand-written corrections were made. Some interviews were signed well after the interview dates. Three of these statements made reference to an altercation that had taken place in the yard after the claimant had returned after the driving incident on 26 January 2021. In general terms the three witnesses made reference to the claimant threatening to knock Mr Spencer out. The claimant did not attend for interview and Mr Spalding sent an email 5 minutes before the hearing was due to start, saying that his email the day before had been ignored and that the claimant “will not be attending” the meeting that day.[32]On 15 February 2021 Mr Esposito wrote to the claimant first class and recorded delivery setting out that he had concluded the investigation into an allegation of dangerous driving that had taken place on 26 January 2021. He said that despite the claimant not having attended the investigation meeting, there was sufficient evidence to support the allegation. He recommended that a disciplinary hearing be convened to consider the allegation formally under the disciplinary procedure. At this point, not all interviews had been signed by all interviewees.[33]On 2 March 2021, Mr Esposito wrote to the claimant inviting him to a disciplinary hearing to take place on 11 March 2021 before Mr David Stuart, Operations Director, Transport. There was an obvious typo within this describing Mr David Stuart as “Davis Stuart”. The letter set out the following allegations: At the hearing you will be required to answer the following allegations: - 15.4 q) Deliberate or reckless infringements of safety rules or practices which place the health and safety of the employee or others at serious risk; by driving in a dangerous manner on Tuesday 26 January 2021. Gross Misconduct - 15.4 n) Breach of confidence or trust, the forging or unauthorised alteration of records or documents, or the disclosure of information for financial or personal gain of the employee or others; by driving in a dangerous manner on Tuesday 26 January 2021. Gross - 15.4 p) Deliberate and sustained refusal to carry out reasonable, lawful and safe instructions, contractual requirements or to comply with Norse policies or procedures; by driving in a dangerous manner on 26 January 2021. Gross Misconduct. - 15.4 a) Physically or verbally threatening or abusive behaviour, physical violence or the threat of physical violence; by verbally threatening Ashley Perkins on Thursday 28 January 2021 by stating you were going to "knock him out". Gross Misconduct. - 15.4 c) Serious acts of insubordination, rudeness or inappropriate behaviour towards or in the presence of employees, contractors, business partners, investors or members of the public; by verbally threatening Ashley Perkins on Thursday 28 January 2021 by stating you were going to "knock him out". Gross Misconduct. - 15.4 a) Physically or verbally threatening or abusive behaviour, physical violence or the threat of physical violence; by verbally threatening myself on Thursday 28 January 2021 by making statements such as "I am going to win this" and "I am going to beat you", and when asked If he was threatening me, you replied "you will see next week". Gross Misconduct. - 15.4 m) Unauthorised absence from work where permission to be absent has been withheld; by not reporting for work from Friday 29 January 2021 to present. Gross Misconduct. - 15.4 p) Deliberate and sustained refusal to carry out reasonable, lawful and safe instructions, contractual requirements or to comply with Norse policies or procedures; by refusing to attend work from Friday 29 January 2021 in an Operative capacity. Gross[34]The letter included the Management Case, including all statements taken during the disciplinary investigation. The claimant was advised that the allegations may constitute gross misconduct if proven, and could lead to his summary dismissal. He was told he would be given every opportunity to make representations and was free to prepare a statement or any documents he wished at the hearing. He was told of the witnesses who would be called, Mr Gardner, Mr Perkins, Mr Basi, Mr Rayfield, Mr Davies, Mr Williams and Mr Spencer. The claimant was told that he would be able to call witnesses, but must make his own arrangements for this. He was asked to provide the names of any of the respondent’s employees who wish to call so that arrangements could be made for them to attend. He was told that he could be accompanied by a work colleague or trade union representative. CCTV footage was not included with the Management Case, but, as set out above i) there was a detailed description of what the footage showed within the management case, and ii) it had been made clear by Mr Spalding on 3 March 2021 that the claimant could not be contacted by phone or email. Disciplinary hearing and decision[35]On 11 March 2021, Mr Spalding emailed Ms Marrison of HR to say that for reasons already advised the claimant would not attend the hearing. It was not clear on the evidence who had been spoken or written to, or what had been said.[36]On 11 March 2021, the disciplinary hearing did not go ahead. Mr Esposito wrote to the claimant on this day observing that the claimant had failed to attend the hearing and did not contact the respondent to provide any reasonable cause. He set out that the hearing had been rescheduled to 15 March 2021. The allegations were repeated, as was much of the content of the previous invitation to the disciplinary hearing. It further made clear “As this hearing has already been rescheduled one, should you fail to attend this rescheduled hearing, without prior notification of a reasonable cause, this will be heard in your absence.” This letter was delivered and signed for the following day.[37]On 14 March 2021 Mr Spalding wrote to Mr Esposito reiterating that he was representing the claimant. He made various observations about the name of the respondent in correspondence. He supplied an email address for the claimant. He said that the claimant would not attend the hearing on 15 March 2021 for a variety of reasons, which included that the invitation to the hearing referred to the hearing officer as Mr Davis Stuart (although it did clearly set out the job title of Mr David Stuart). He said that inquiries revealed that no one of this name worked for the respondent and that the claimant would not be attending a “kangaroo” hearing where it was not possible to identify who would be making the decision. Mr Spalding said that neither he nor an identified witness for the claimant could attend on that day, and that he required two further witnesses to attend. He said that he required camera footage.[38]On 15 March 2024 the disciplinary hearing took place before Mr Stuart, who was supported by a HR representative, Ms Calvert. Ms Calvert told Mr Stuart of the fact that Mr Spalding had informed the respondent that he would not attend. This was the second non-attendance at the disciplinary hearing by the claimant, who had been warned that the hearing could proceed in his absence, and Mr Stuart took a decision to proceed in his absence.
Conclusions
[39]Mr Stuart had read the management case before the hearing and given thought to some areas on which he sought further information. He prepared a number of questions. At the hearing Mr Esposito presented the management case. Mr Stuart adjourned to view the CCTV footage. The hearing resumed and Mr Stuart asked Mr Esposito a number of questions. He did not require the witnesses to give evidence to the hearing.[40]In his witness statement in these proceedings Mr Stuart gave a detailed description of what he saw in the CCTV footage. In summary, he described the traffic lights turning amber while the vehicle driven by the claimant was 40 or 50 yards away. The vehicle accelerated, but was still 20-25 yards away when the lights turned red. The vehicle went through the red lights. A pedestrian crossed the road as the lights were amber, finished crossing the road when they were red, and the claimant’s vehicle subsequently went through the lights 1 to 1.5 seconds later. A vehicle in an adjacent road had to brake to avoid colliding with the vehicle. He viewed this as dangerous or at the very least careless driving. Mr Stuart also described a second incident where the claimant’s vehicle swerved in front of a vehicle driven by Mr Perkins, and broke hard. Mr Spalding did not challenge any of this in cross-examination.[41]Mr Stuart considered the evidence after the hearing and went through a checklist to assist him in making his decision. He considered the evidence, and considered the claimant’s clean disciplinary record. He was clear in his witness statement that the “stand-out issue” for him was the allegation of jumping the red light. He considered that this put the claimant, his crew and other users at serious risk of harm, and that it was a matter of luck, and other drivers taking evasive action, that had meant that there had not been a road traffic accident. Mr Stuart also concluded that there was some overlap in the charges. He considered that the wording of one of the charges (15.4 n) was confusing, and he did not uphold that one. He did not consider that the allegation in respect of threats towards Mr Esposito was made out, this being an intimation that he would “beat” the charge rather than threaten Mr Esposito. He found the other charges proven, and amounting to gross misconduct. He considered that summary dismissal was the only appropriate sanction in a case where running a red light in a 26 ton vehicle had the potential to cause catastrophe, even loss of life.[42]Mr Stuart set out the outcome of the hearing in a letter to the claimant dated 16 March 2021. This was a lengthy and thorough letter, which included:a. A summary of the allegations.b. A summary of the procedure adopted.c. A review and commentary of the evidence presented and conclusions reached in respect of each charge, including the rationale for upholding and not upholding charges.d. A discussion of the sanction, outlining the potential for catastrophic consequences and even fatality involved in the driving allegations as shown on CCTV.e. A right of appeal within 10 days of the date of the letter. Appeal[43]On 8 April 2021 Mr Spalding emailed members of HR to say that the claimant had not received a response to his notice of appeal against dismissal. He attached a letter appealing dismissal bearing the date 31 March 2021. The respondent had received no such letter. I note that there is no email on or around 31 March 2021, and I find that the letter was not sent prior to 8 April 2021.[44]On 21 April 2021 Ms Marrison responded to the email of 8 April 2021 apologising for the delay. She said that as she had “already explained” the procedures in line with the collective agreements recognising trade unions or work colleagues as companions at relevant meetings, and that the respondent had taken a decision not to engage with other types of representatives, as experience suggested that this could often confuse the issues, disrupt the process or antagonise the situation. She said she would correspond directly with the claimant.[45]On 26 April 2021 Ms Abbot wrote to the claimant acknowledging that it was understood that he intended to appeal his dismissal. She enclosed the appeal policy and invited him to submit an appeal within 10 days of that letter.[46]There was in the bundle a letter dated 30 April 2021 from Mr Spalding to Ms Lewczuk from HR purporting to re-send the appeal sent with the 8 April 2021 email. Ms Abbot told me that the respondent has no record of receiving this letter. I accept this. It is not stamped as received, and once again, there is no covering email attaching this apparent letter.[47]On 3 May 2021 Mr Spalding wrote to Ms Abbot. He made various points about the non-applicability of the appeal procedure, his representation of his “client” the claimant, and he set out numbered grounds of appeal. Mr Spalding had clearly been told that his “representation” of the claimant was not recognised, nothing was heard from the claimant or Mr Spalding subsequently, and his appeal was regarded as abandoned. Other matters[48]Mr Spalding referred in his witness statement, provided a matter of days before this hearing, to having on 25 July 2023 seen a Norse vehicle undertake him in a tunnel, make rapid lane changes, driving dangerously, fail to stop at a roundabout, suddenly pull over to let an operative out, and pull away without warning. He said he reported this matter but was not invited to attend a disciplinary hearing, and he understood the driver was not dismissed. There is no evidence about whether there was a disciplinary process, and, if there was, what evidence was considered or what if any mitigation was offered.[49]Mr Spalding also gave evidence that he reported a Norse vehicle drive through a no entry sign into Gillingham High Street. A council employee emailed him on 16 August 2023 to say: “ Following investigations using our tracking software, I can confirm that our information shows what was observed i.e. vehicle entering Gillingham High Street via Green Street access. However, the position is not completely straightforward - the vehicle/crew have to collect High Street waste. This is collected and stored at an agreed place which is the base of the tree outside Costa’s. The volumes created mean the driver has to get the vehicle close to the collection point. The complication in Gillingham is the days that the market is in place - Monday and Saturday. It is not possible to drive through the High Street on these days as this is blocked by stall holders. It is a long standing position that the collection vehicle has no option but to access through this No Entry route, load and depart through the same point. It is the lowest risk to both staff and public. This enables us to stay on top of the environmental issues of waste in the town centre. We will discuss with Highways an alternative signage solution, but currently it is an operation that is a compromise in order to satisfy the requirements of service delivery in respect of the contract with Medway Council. Thank you as always for bringing this to our attention.”
The law
[50]Under section 98(1) ERA 1996 it is for the employer to show the reason for the claimant’s dismissal, and that this is a potentially fair reason under section 98(2) ERA 1996. In this context, a reason for dismissal is “a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee” (Abernethy v Mott, Hay & Anderson [1974] ICR 323).[51]The approach to fairness of dismissal is governed by section 98(4) ERA, which provides: - Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.[52]The EAT set out the approach to what is now section 98(4) ERA in Iceland Frozen Foods v Jones [1983] ICR 17.(1) the starting point should always be the words of [s.98(4)] themselves;(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.[53]Where the reason for the dismissal is misconduct, the approach to fairness is the test in British Home Stores v Burchell [1980] ICR 3 “First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[54]It is important to focus on the wording of section 98(4) ERA, which does not set out a perversity test. It is for the tribunal to decide how serious the claimant’s conduct was on the information available to the employer. It is for the tribunal to assess whether the conduct in question was such as to be capable of amounting to gross misconduct, and a failure to do so could mean that the tribunal would have failed to determine whether it was within the range of reasonable responses to treat the conduct and sufficient reason for dismissing the employee summarily (Burdis, and also Elson v Robbie’s Photographic Ltd UKEAT/0282/18/RN, Newbound v Thames Water Utilities [2015] IRLR 734).[55]In Robinson v Combat Stress UKEAT/0310/14/JOH the EAT observed: '`20. The reference to the reason is not a reference in general terms to the category within which the reason might fall. It is a reference to the actual reason. Where, therefore, an employer has a number of reasons which together form a composite reason for dismissal, the Tribunal's task is to have regard to the whole of those reasons in assessing fairness. Where dismissal is for a number of events which have taken place separately, each of which is to the discredit of the employee in the eyes of the employer, then to ask if that dismissal would have occurred if only some of those incidents had been established to the employer's satisfaction, rather than all involves close evaluation of the employer's reasoning. Was it actually that once satisfied of one event, the second merely leant emphasis to what had already been decided? There may be many situations in which, having regard to the whole of the reason the employer actually had for dismissal, it is nonetheless fair to dismiss. An example might be where there had been a chain of events in which it is suspected that an employee had his “hand in the till”. If only some of those events are sustained before a Tribunal, nonetheless that might be quite sufficient – indeed perhaps usually would be – for a dismissal for that reason to be sustained even if the employer believed that all the events had occurred whereas the Tribunal thought the employer was only entitled to consider that some had. Similarly, if an employer thought there to have been several different occasions on which racist language had been used by an employee, but a Tribunal concluded that some of those incidents did not bear close examination; or if the employer thought there had been a number of sexual assaults, but the Tribunal thought the number smaller, nonetheless a dismissal – “having regard to the reason shown by the employer” – might easily fall within the scope of that which it was reasonable for an employer to have done. 21. All must depend upon the employer's evidence and the Tribunal's approach to it. But that approach must be to ask first what the reason was for the dismissal, and to deal with whether the employer acted reasonably or unreasonably by having regard to that reason: that is, the totality of the reason which the employer gives.''[56]Inconsistent sanctions for the same or sufficiently similar misconduct can render a dismissal unfair, but consistency arguments should be scrutinised with care to ensure there is sufficient similarity Paul v East Surrey District Health Authority [1995] IRLR 305.[57]In considering a dismissal that is disciplinary in nature, the tribunal will have regard to the ACAS Code of Practice on Disciplinary and Grievance Procedures. In particular I had regard to the following paragraphs in determining the issues in this case: Paragraph 5. It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. Paragraph 9. If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. Paragraph 12. Employers and employees (and their companions) should make every effort to attend the meeting. At the meeting the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.[58]Under the principal in Polkey v AE Dayton Services Ltd [1987] IRLR 503 where there is a failure to adopt a fair procedure at the time of dismissal, dismissal would not be rendered fair just because the procedural unfairness did not affect the end result. Compensation can be reduced to reflect the chance of dismissal taking place had a fair procedure been adopted.[59]The burden is on the employer to show what might have happened had a fair procedure been followed, but the tribunal is to take account of all the evidence in making an assessment. Sometimes reconstruction of what might have been is so uncertain or speculative that no sensible prediction can be made (Software 2000 v Andrews [2007] IRLR 569 and King v Eaton (No 2) [1998] IRLR 686.)[60]Section 123(6) ERA provides that the tribunal shall reduce the amount of the compensatory award by such proportion as it considers just and equitable where it finds that the dismissal was to an extent caused or contributed to by any action of the employee. This involves a finding that there was conduct “deserving of blame” by the employee Sanha v Facilicom Cleaning Services Ltd UKEAT/0250/18. Conclusions Reason for dismissal[61]The claimant’s case was that the respondent was “gunning” for him. In support of this he made reference to historical issues with Veolia, and with the respondent. However, none of this was put to either of the respondent’s witnesses, both of whom were clear in their reason for dismissal. Both described having watched the video footage and been adamant that they considered the claimant’s driving to have been exceptionally dangerous and meriting summary dismissal for gross misconduct as outlined in the respondent’s disciplinary policies.[62]My strong impression of both the detail of the evidence, and standing back and looking at things broadly, is that there has been a failure by the respondent to engage both internally and at the hearing before me, with the central issue of the allegations against him. Instead there has been inordinate focus on evidence at the periphery and on process. There was nothing that undermined the respondent’s clear reasons given at the time and before me that the reason the respondent dismissed the claimant was because it believed he was guilty of 6 charges of gross misconduct. Genuine belief based on reasonable grounds[63]Strictly speaking, these are two elements of the Burchell test, but it is expedient to consider them together. An assessment of the genuineness of belief is often informed by the grounds on which it is formed.[64]Again, repeating the previous section, no effort was made to undermine the genuineness of the belief in misconduct held by the respondent’s witnesses. They set out in their witness statements the crucial evidence, in particular the CCTV evidence, which informed their belief.[65]I find Mr Stuart genuinely believed, having seen on CCTV that the claimant had driven dangerously at substantial risk of catastrophic consequences to himself, colleagues and other road users.[66]This belief was based on reasonable grounds:a. He had an extensive management case which set out Mr Esposito’s observations of the CCTV evidence.b. He viewed the CCTV evidence himself.c. He had regard to the numerous witness statements. It is entirely understandable that there were minor discrepancies in what certain of the witnesses said. Their perspectives were different, their attention was not uniformly directed on the same things (some were viewing their phones at points) and they formed slightly different impressions. But Mr Stuart had the benefit of the CCTV evidence which showed a clear picture of the incidents.[67]I find that Mr Stuart had a genuine belief that the claimant had threatened Mr Perkins. This too was based on reasonable grounds:a. Three witnesses gave evidence of an angry altercation in which threats appeared to be made by the claimant. Mr Perkins gave evidence of being told about the threatening language being “something like he was going to smash me” as he was walking away from the claimant after a loud exchange.b. Mr Williams said that he heard the claimant say he was going to “knock [Mr Perkins] out”.c. Ms Robinson gave evidence that she heard the claimant shout to Mr Perkins “I will knock you out”.d. This was not a significant disparity in the evidence of the witnesses, and it was clear that the different wording of Mr Perkins was based on what he says he was told.[68]Mr Stuart had a genuine belief based on reasonable grounds that the claimant went absent without leave from work. This was based on the evidence in the management case of Mr Esposito that the claimant left the yard at 16.20 on 28 January 2021, never came back and was AWOL ever since. The claimant’s evidence to the tribunal was that he went back to the yard on 1 February 2021 and left never to return when he was told he was suspended. However, I am focussing on the evidence before Mr Stuart. It was within the band of reasonable responses to accept the then unchallenged evidence of Mr Esposito. Reasonable investigation and fair procedure[69]Again, these are strictly speaking two elements of the Burchell test, but the reasonableness of an investigation is often very closely linked to the fairness of the procedure.[70]In assessing these aspects I have had regard to the ACAS Code, with close attention to the paragraphs highlighted above. Broadly, the Code sets out keys to handling disciplinary issues in the workplace obliging employers to establish the facts of each case, informing the employee of the problem, holding a meeting with the employee to discuss the problem, allowing the employee to be accompanied at the meeting, deciding on appropriate action and providing the employee with an opportunity to appeal.[71]Employers’ own policies and procedures also have a role to play in assessing whether there has been a reasonable investigation and procedural fairness. However, policies and procedures are not rigid tramlines, and a deviation from procedure does not necessarily render a process procedurally unfair. A broader view of fairness is required.[72]I also remind myself that in assessing the reasonableness of the investigation I am assessing whether it fell within the range of reasonable responses open to a reasonable employer. The fact that some employers may not have conducted an investigation in the same way that this respondent did, or would have applied a different procedure or applied the procedure differently does not make it unreasonable or unfair.[73]The driving incidents took place on 26 January 2021. My findings of fact at paragraphs 17 to 31 above set out how Mr Esposito carried out his investigation. In short, my findings indicate that he set about to establish the facts of the case without unreasonable delay by viewing CCTV footage, interviewing witnesses and seeking to interview the claimant. This was in accordance with the ACAS Code.[74]The claimant did not attend the investigation meeting. The reasons given by Mr Spalding in his email of 3 February 2021 were that the claimant said he had been in contact with someone in the same household as someone who had been sent home and advised to get a Covid test. Mr Spalding also complained about the claimant not having been given his personnel file or contract of employment. Even on the claimant’s case he had not been in contact with someone who had tested positive for Covid, but merely someone in the same household as someone who had been advised to take a test. I also do not look at this proffered reason in isolation. Looking at the case as a whole, a pattern emerged of the claimant not engaging at any stage of the disciplinary process. He was later not to attend two disciplinary hearings and did not properly engage with the appeal process. Mr Spalding was holding himself out as “representing” the claimant, outside of the respondent’s disciplinary policies which, uncontroversially, only allow for trade union or colleague accompaniment (though not at investigatory meeting stage). The whole picture leads me to the conclusion that the claimant and Mr Spalding were, at this stage, throwing up thin obstacles to participation with the process to justify non-engagement. Some employers may have attempted to reconvene an investigation interview with the claimant. The fact that the respondent did not, does not, in my view, take them outside the range of reasonable responses. Though not strictly relevant at this stage, had the respondent attempted to hold another investigation meeting with the claimant, I am in no doubt that he would not have attended it, given his non-engagement with the entirety of the process.[75]The claimant also takes issue with the fact that he was not provided with the CCTV footage during the investigatory stage of the process. It is not easy to see how this could have been supplied to him given Mr Spalding’s insistence that he would be representing the claimant, the respondent’s understandable reluctance to accept his representation outside of their policies given their experiences of this issue, and Mr Spalding’s indication that the claimant could not be emailed or use a phone. But also, the ACAS Code suggests that the employee be given “sufficient information about the alleged misconduct”. It does not mandate criminal or civil justice levels of disclosure at the earliest opportunity. I do not find that this lack of disclosure took the investigatory stage outside the band of reasonable responses open to a reasonable employer.[76]The claimant also takes issue with the fact that the investigation morphed suddenly from an investigation into driving into a disciplinary hearing about both driving and alleged threats to both Mr Spencer and himself. It is right to say that the suspension from driving duties letter of 29 January 2021 and the invitation to an investigation meeting refer only to driving, while the management case and invitation to a disciplinary hearing include the threats allegations.[77]This does not strike me as sinister, unreasonable (or rather, outside the band of reasonable responses) or unfair. Disciplinary investigations are often dynamic, uncover new facts, or cause a reconsideration of the evidence and the shaping of disciplinary charges.[78]Similarly, the claimant accuses Mr Esposito as being a compromised investigator in that one of the charges related to alleged threats against himself. Some employers may have withdrawn Mr Esposito from the investigation having become potentially a witness. However, this was a small discrete charge that Mr Stuart was later perfectly able to evaluate, and which Mr Stuart did not uphold. This did not take the investigation outside the band of reasonable responses.[79]Mr Spalding also attacked the investigatory stage on the basis that Mr Esposito wrote to the claimant on 15 February 2021 to say that the investigation had concluded and that he recommended a disciplinary hearing at a time when a number of interviewee statements had not been signed, and some were corrected. By this stage all the interviewees had been interviewed, and it is more or less certain that the broad nature of their evidence was pretty clear. In terms of the driving allegations, the main plank of the evidence was the CCTV evidence. There was nothing that would take the investigation outside the range of reasonable responses in Mr Esposito deciding that the investigation was concluded and that the evidence supported taking the matter to the next stage. The fact that interview summaries were not signed and in a couple of instances were to contain handwritten corrections does not undermine Mr Esposito’s conclusion.[80]Moving on to the disciplinary hearing, which is also, for the purposes of the Burchell test part of the investigation the reasonableness of which I am assessing. My findings of fact on this stage are at paragraphs 33 to 42 above.[81]In short, the claimant was invited to the disciplinary hearing on 11 March 2021 with a clear explanation of the charges he was facing, he was supplied the management case, told which witnesses would be called, was given the opportunity to call his own witnesses, given the right of accompaniment according the respondent’s policies, and was warned of the potential consequences of a finding of gross misconduct.[82]It is right to say that the CCTV evidence was not provided, but similar issues as highlighted above applied. He would not accept email, and Mr Spalding was insisting that he was representing the claimant, which was outside of the respondent’s policy.[83]The claimant did not attend, for reasons which are not entirely clear. However, the respondent gave the claimant another chance to attend a hearing on 15 March 2021. He was warned that if he did not attend that hearing it could go ahead in his absence.[84]The claimant did not attend the hearing on 15 March 2021. I do not regard the letter of Mr Spalding on 14 March 2021 as providing compelling reasons for non-attendance. The objection to a hearing by Mr Davis Stuart, when it must have been clear who was the hearing officer, is not a strong one. In isolation, and standing back and looking at the level of engagement in the disciplinary process as a whole, I find that the claimant and Mr Spalding were not seeking to engage meaningfully in the process. I find Mr Stuart’s decision to hear the disciplinary in the claimant’s absence (or the second time) not unreasonable.[85]Mr Spalding attacked Mr Stuart’s decision not to hear directly from the witnesses as being unreasonable. I do not agree. Mr Stuart had their signed summaries of interview, and the claimant did not attend to challenge their evidence. Mr Stuart in his evidence before me was also clear that he was not there merely to rubber-stamp the management case: he questioned the wording of one of the charges and did not uphold it, and he did not uphold the charge relating to the alleged threats to Mr Esposito. He was also clear that it was the CCTV evidence that was “devastating to the claimant’s position”. Mr Stuart described in his witness statement, particularly in relation to the red light incident, that the claimant drove in a way that was dangerous and which posed a risk of catastrophic consequences. Mr Spalding was unable to demonstrate before me what might have been achieved in calling witnesses that might have undermined this conclusion. I do not find that Mr Stuart’s approach was outside the band of reasonable responses.[86]Mr Stuart made a determination on the basis of the evidence, which he communicated to the claimant with clarity and thoroughness. He upheld 6 of the 8 allegations. I questioned Mr Stuart about his finding in respect of allegation 15p that there had been a “deliberate and sustained” refusal to carry out instructions or adhere to policies in the manner of driving. He responded that there had been two driving incidents over the course of several minutes, which indicated a sustained course of conduct. I consider that this was a finding reasonably open to Mr Stuart. But had I not, it really takes matters no further. This charge was essentially exactly the same allegation as 15.4a but re-stated under a different part of the disciplinary policy.[87]Finally, Mr Stuart offered the claimant a right of appeal.[88]I find that the disciplinary hearing stage of the investigation was in accordance with the ACAS Code, the respondent’s own policies and procedures and was not outside the band of reasonable responses for a reasonable employer.[89]My findings on the appeal stage are at paragraphs 43 to 47. Again, I find that Mr Spalding and the claimant did not properly engage with the process. I find that letters purporting to have been sent were not sent. I find that Mr Spalding was told clearly that he was not recognised as the claimant’s companion as his involvement did not fit within the respondent’s policies and was given cogent reasons why this was the case. The respondent sought to engage with the claimant directly, which I find was not unreasonable. The claimant did not pursue his appeal.[90]Looking at the investigation, that is to say the investigatory stage, the disciplinary hearing and the appeal stage, as a whole, and focussing on its constituent elements, I do not find that it fell outside the band of reasonable responses open to a reasonable employer. I do not find that there was any procedural unfairness. Dismissal within the range of reasonable responses[91]Mr Stuart was clear in his evidence that the “standout” issue for him was the driving allegations, and in particular the red light issue. He made clear in paragraph 19 of his witness statement that he regarded dangerous driving of a 26 ton vehicle capable of catastrophic damage to life and property as a matter of utmost seriousness. For him, the running of the red light alone merited summary dismissal.[92]I find that the respondent acted reasonably, having regard to equity and the substantial merits of the case, in treating the 6 upheld disciplinary charges as sufficient reason to dismiss the claimant.[93]It is right that there was some overlap in a number of the charges, but the findings of dangerous driving certainly fell within the examples of gross misconduct within the policy. It is clear that Mr Stuart did not simply move straight from a finding of gross misconduct to a decision to dismiss, but weighed the gravity of the offence, and reached a conclusion that it was so serious that summary dismissal was the only appropriate outcome, notwithstanding the claimant’s clean disciplinary record. Having regard to the gravity of the allegations upheld, I do not find that conclusion unreasonable.[94]I do not find that these allegations were inconsistent with other disciplinary issues which the respondent dealt with subsequent to the claimant’s dismissal. In respect of the alleged poor driving raised by Mr Spalding. All I have to go on is the word of Mr Spalding, the claimant’s representative, set out in a statement exchanged a few days before the hearing before me, that he observed poor driving of one of the respondent’s vehicles. There is not sufficient reliable evidence for me to determine whether there is sufficiently comparable misconduct to determine inconsistent treatment. With respect to the driving through the no entry sign. There is a rational basis for distinguishing this issue from the claimant’s misconduct. It appears that lorries did this as they had no option but to do so, and that this was a long-standing arrangement that was considered the lowest risk solution.[95]In the circumstances, I find that the respondent acted reasonably in treating the reasons for dismissal as sufficient reasons for dismissal. Had I not been satisfied in respect of some of the allegations, I consider that this would have been one of the cases identified in Robinson where other matters simply lent weight to the decision to dismiss for running the red light.[96]I have not found that there were procedural unfairness in any way, but if there were, this would have been a case where I would have found a hypothetical dismissal 100% certain based on Mr Stuart’s evidence of what he saw on the CCTV concerning the claimant’s driving. I would also have concluded that the claimant did in fact commit gross misconduct and that he contributed very substantially indeed to his own dismissal. Overall conclusion[97]I therefore find the claim of unfair dismissal is not well-founded, and I dismiss it.[1]This is the determination of the Respondent’s application for costs made initially on 12 August 2024 with grounds following on 12 September 2024.[2]This judgment is to be read in conjunction with the Judgment and Reasons on liability sent to the parties on 14 June 2024 following a final hearing on 4 and 5 June 2024. By that judgment I held that the Claimant’s claims of unfair dismissal were not well-founded, and I dismissed them for the reasons given. Procedure[3]The Respondent initially made an application for costs by email dated 12 August 2024, but did not set out its grounds for the application.[4]By letter of 27 August 2024 I instructed that the Respondent set out its grounds for the application and its view as to whether the application should be determined at a hearing or on the papers. I instructed that the Claimant should set out his grounds for objecting to the application 14 days thereafter, together with his view on whether there should be a hearing or a determination on the papers.[5]On 9 September 2024 Mr Spalding, who had represented the Claimant at the liability hearing, emailed the Tribunal attaching a statement from himself, and an “Initial Response of David Clark”. It was clear that a hearing was not required. 10.1 Judgment – no hearing - rule 60 February 2018[6]On 11 September 2024 the Respondent’s representative, Mr Ashley, apologised for the delay in responding, setting out reasonable personal circumstances which led to the delay. He indicated that a written application would swiftly follow.[7]On 12 September 2024 the Respondent set out its detailed application for costs, attaching a costs schedule and a short supplementary bundle (I will refer to documents in this as follows – for example page 8 of this bundle [Supp 8]).[8]On 16 September 2024 Mr Spalding emailed the Tribunal to say he was coming off the record, but that the Claimant would be arranging new representation.[9]On 21 September 2024 Mr Mehmet, a friend of the Claimant’s, emailed the Tribunal to indicate that he was helping the Claimant and asking for a further 30 days in which to respond. There was some further correspondence from the parties.[10]The file was referred to me, but it would appear that some of the latest correspondence had not made it onto the file when it was referred to me. By a letter sent on my instruction on 17 October 2024 I gave the Respondent a further 21 days in which to make any response to the Respondent’s written application for costs.[11]On 6 November 2024 Mr Mehmet emailed the Tribunal with 6 attachments:a. An email from Mr Mehmet to the Tribunal the previous day setting out some history and quoting previous emails to the Tribunal;b. The statement of Mr Spalding dated 8 September 2024;c. A letter dated 29 October 2024 from HMRC to the Claimant setting out a payment plan;d. An “Income & Expenditure Report 04.10.24”;e. An “Income & Expenditure Statement 04.10.24” containing seemingly identical information;f. A letter from the Claimant to the Respondent’s representative of 26 July 2023; The Respondent’s application[12]The Respondent makes its application under Rule 76(1) Employment Tribunal Rules of Procedure 2013 (“ET Rules”) on the basis that the Claimant acted vexatiously and/or unreasonably in both the bringing of the proceedings and in the way they were conducted (Rule 76(1)(a) ), and further, that the claim had no reasonable prospect of success (Rule 76(1)(b) ). The Respondent, in its application, sets out in considerable detail how it says the Claimant acted vexatiously and/or unreasonably, but also relies on the “shortcut” to the finding of unreasonableness in Rule 10.1 Judgment – no hearing - rule 60 February 2018 39(5) in that it says that the Tribunal decided specific allegations against the Claimant for substantially the same reasons as given in a deposit order made by EJ McLaren by Order sent to the parties on 31 August 2023 (which I will deal with below).[13]Ther Respondent’s application for costs set out a history of the claims (paragraphs 9 to 27). The Respondent says, very much in summary:a. That a claim form prepared by Mr Spalding set out unparticularised allegations of unfair dismissal, race discrimination and victimisation, making serious and unfounded allegations;b. The Response set out the basis the Claimant was dismissed and pleaded a costs warning;c. Attempts were made to persuade the Claimant to drop his claims with no costs consequences;d. The Claimant attended a preliminary hearing before EJ McLaren on 8 August 2022 representing himself. This allowed for a more sensible discussion, and the Claimant withdrew his race discrimination and victimisation claims. The Claimant sought to explain his position on unfair dismissal and EJ McLaren made a deposit order on hearing such.e. On the afternoon of 8 August 2022, following the hearing, Mr Ashley emailed the Claimant explaining what a deposit order was, and the potential consequences of it. Mr Ashley set out his instructions that the Respondent would not apply for costs if the Claimant withdrew his claim by 12 August 2022. Mr Ashley encouraged the Claimant to take professional legal advice “i.e. not from Mr Spalding before deciding to proceed with your claim in the face of a Deposit Order”.f. The Claimant presumably paid a deposit, but appeared to take no further steps to pursue his claim. On 14 June 2023 Mr Ashley repeated the costs warning and indicated that he was considering making an application to strike out the claim.g. On 12 July 2023 Mr Ashley provided a link to the Respondent’s disclosure including video files of CCTV footage. The application refers to correspondence during 2023 and 2024 which makes clear that the video files were repeatedly made available to both the Claimant and Mr Spalding (an email of 13 August 2023 provides a Dropbox link which had been sent twice before, and an email the following day explained how the files could be downloaded, watched and shared), and that the Respondent’s position that the claims were misconceived, subject to a deposit order and that costs would be sought was made clear on a number of occasions. 10.1 Judgment – no hearing - rule 60 February 2018h. It was clear from the judgment following the final hearing that the claim was dismissed for substantially the same reasons as appeared in the deposit order of EJ McLaren.i. Attempts to engage with the Claimant and Mr Spalding after the judgment led to nonsensical responses that were untrue and failed to engage with the issues.[14]At paragraph 28 of the application the Respondent sets out factors which, it says, demonstrate that the Claimant had acted vexatiously or otherwise unreasonably. These include:a. Presenting a claim with two unviable causes of action and one weak one that was bound to fail;b. Failing to heed warnings that the claim was not going to succeed;c. Persistently failing to receive and consider CCTV evidence;d. Pursuing a claim he made no serious effort to engage in.[15]The Respondent alternatively put its application on the basis that it had no reasonable prospect of success. That pursuant to Rule 39(5)(a) he is to be treated as having acted unreasonably. That what was done by Mr Spalding in proceedings is to be taken as having been done on the Claimant’s behalf. The deposit order[16]EJ McLaren’s conclusions on the deposit order are set out in paragraphs 20 to 28 of her Order. She concluded that the following allegations in the unfair dismissal claim had little reasonable prospects of success:a. An argument about procedure not being followed by the Respondent (paragraph 22);b. An allegation of bias – the investigation outcome was based on a thorough investigation (paragraph 23);c. The investigation was tainted as charges were added during the investigation (paragraph 24);d. An allegation that the decisionmaker may not have genuinely believed in the fact of the gross misconduct (paragraph 25);e. The sanction of dismissal was not reasonable (paragraph 26);f. The Claimant was treated inconsistently with others (paragraph 27). The Claimant’s objection to the application[17]Mr Spalding’s statement of 8 September 2024 includes the following:a. Mr Spalding has been involved in assisting someone else with a claim against the Respondent, and he asserts that the Respondent 10.1 Judgment – no hearing - rule 60 February 2018 made an application for wasted costs against him which included untruths. He says there is other conduct by people associated with the Respondent which is suspicious;b. He has various health conditions;c. More relevantly, at paragraphs 13 to 20 he says that the Claimant was not shown CCTV during the internal investigation, that numerous requests were made for CCTV were made but it was not supplied, that CCTV was only offered after all the costs had been incurred, that the Claimant genuinely believed while he had not seen the CCTV that he had a good chance of success in his case.[18]The “Initial Response of David Clark” is undated. Given its legal content I suspect it was also written by Mr Spalding, but will take it as the Claimant’s evidence. This statement includes:a. The Respondent did not set out its grounds for an application for costs, and the provisions of Rule 76 ET Rules were set out;b. The Claimant had a genuine belief in his claim and had not acted vexatiously or disruptively in bringing it. He believed he had a reasonable chance of success.c. The Claimant said the judge at the preliminary hearing did not say he had no chance of success (I note that she repeatedly said his claims had little reasonable prospects of success in respect of a number of arguments he was putting forward). Rule 76(1)(b) refers to a claim having “no” reasonable prospects of success;d. The judge at the preliminary hearing put the Respondent on notice that the CCTV was fundamental to the Claimant’s case.e. It was only after the final hearing started at 11.02 that the Respondent finally offered to provide the CCTV. Why had they waited so long to provide it when it was so crucial?f. By the time the CCTV was offered, all costs had been incurred.[19]There is a letter from the Claimant to the Respondent’s representatives dated 26 July 2023 (24 crossed out and 26 added by hand) in which the Claimant says he cannot open the Dropbox link as he has a basic mobile phone and no laptop or computer. He said that Mr Spalding similarly could not open the link, and asked for it to be re-sent to an email address for Mr Spalding.[20]The Claimant’s income and expenditure report and statement indicated that he receives net monthly income of £2355.83. He sets out a “Basic Income of £13 per hour and is required to work a minimum of 50 hours. This must be per week as he gives a gross monthly income of £2,816 (which is £13 x 50 x 52 ÷ 12). 10.1 Judgment – no hearing - rule 60 February 2018[21]This document also states that he does overtime in addition to his 50 hours a week which “regularly” involves working at weekends and at unsociable hours. He does not set out how many hours of overtime he works, or what rate of pay he receives for overtime or whether he receives a supplement or enhanced rate for working weekends or antisocial hours.[22]His monthly outgoings are £2644 and include rent and utilities, council tax, child support and other expenses.[23]The Claimant sets out that he has certain difficulties with his own physical and mental health. He also explains that he has eight children and 3 grandchildren. Four of his children and two of his grandchildren have disabilities.[24]No documentary evidence has been supplied to support the income and outgoings such as payslips or bills.[25]The HMRC payment plan sets out an agreed arrangement for the Claimant to pay £5257.23 by 6 monthly instalments of £876.20 beginning on 1 December 2024 with a final instalment on 1 May 2025. The law[26]Rule 75 ET Rules provides: (1) A costs order is an order that a party ('the paying party') make a payment to— (a) another party ('the receiving party') in respect of the costs that the receiving party has incurred while legally represented or while represented by a lay representative;[27]The power to make a costs order is in Rule 76 which provides: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success;[28]Rule 84 ET Rules provides: “In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.[29]Rule 39 ET Rules deals with deposit orders, and includes: 10.1 Judgment – no hearing - rule 60 February 2018 (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.[30]Costs orders are the exception rather than the rule in employment Tribunal proceedings, but that does not mean that the facts of the case must be exceptional (Power v Panasonic (UK) Ltd UKEAT/0439/04).[31]Costs orders are compensatory in nature rather than punitive (Lodwick v Southwark London Borough Council [2004] ICR 884).[32]Such awards can be made against unrepresented litigants, including where there is no deposit order in place all costs warning (Vaughan v London Borough of Lewisham UKEAT/0533/120). However, whether a party is professionally represented is a factor to be taken into account (AQ Ltd v Holden [2012] IRLR 648).[33]It was observed in Bennett v London Borough of Southwark [2002] EWCA Civ 223 that “what is done in a party’s name is presumptively, but not irrebuttably, done on her behalf. When the sanction is the drastic one of being driven from the judgment seat, there must be roo for the part concerned to dissociate herself from what her representative has done”. The Respondent makes the point that this is an important point when the representation is by a lay representative who is not amenable to a wasted costs order.[34]In terms of abusive, disruptive or unreasonable conduct, “unreasonableness” bears its ordinary meaning and should not be taken to be equivalent of “vexatious” (National Oilwell Varco UK Ltd v Van de Ruit UKEAT/0006/14).[35]Guidance has been given by the Court of Appeal in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78 on the approach to assessing unreasonable conduct: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had”. 10.1 Judgment – no hearing - rule 60 February 2018[36]The Tribunal does not need to identify a direct causal link between the unreasonable conduct and the costs claimed (MacPherson v BNP Paribas (London Branch) (No 1) [2004] ICR 1398).[37]Rule 84 ET Rules says that the Tribunal “may” have regard to the party’s ability to pay. When making an order for costs against a party of limited means, the Tribunal is not required to limit the sum awarded as being confined to an amount they could pay; it may be that their circumstances will improve (Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797. It may, however, not be a proper exercise of discretion to award more than a party could reasonably be expected to pay over a reasonable period.[38]Rule 39(5) ET Rules provides a shortcut to finding unreasonable conduct for the purpose of considering the discretion to award costs under Rule 76, but the discretion as to whether to award costs remains to be exercised by the Tribunal taking account of all relevant circumstances in determining whether it is appropriate and proportionate to make an order, and if so, in what amount (Oni v UNISON UKEAT/0370/14).
Conclusions
[39]There are three stages in determining whether or not to award costs under Rule 76 ET Rules; first, whether the applicant has reached the threshold of establishing that a party had acted vexatiously, abusively or disruptively or that a claim had no reasonable prospects of success. Second, if the threshold has been reached, the Tribunal will go on to consider whether it is appropriate to make an order for costs. Finally, if it is appropriate to make an order for costs Tribunal will go on to consider the amount. Threshold[40]As set out above, if the Tribunal has made a deposit order, then where a Tribunal subsequently decides that allegation or argument against that party then that party will be treated as having acted unreasonably unless the contrary is shown.[41]I first consider whether at the liability hearing I decided the specific allegations or arguments against the Claimant for substantially the same reasons as given in the deposit order. I am satisfied that I did. I will repeat the sub-paragraphs at paragraph 16 above and cross-reference them with my Judgment and Reasons in bold:a. An argument about procedure not being followed by the Respondent (paragraph 22); (see paragraph 69-90)b. An allegation of bias – the investigation outcome was based on a thorough investigation (paragraph 23); (see paragraph 78) 10.1 Judgment – no hearing - rule 60 February 2018c. The investigation was tainted as charges were added during the investigation (paragraph 24); (see paragraph 76-7)d. An allegation that the decisionmaker may not have genuinely believed in the fact of the gross misconduct (paragraph 25); (see paragraph 63-68)e. The sanction of dismissal was not reasonable (paragraph 26); (see paragraph 91-99)f. The Claimant was treated inconsistently with others (paragraph 27) (see paragraph 94).[42]I am to treat the Claimant as having pursued these arguments or allegations unreasonably unless the contrary is shown. The Claimant has not shown the contrary. His (or, I suspect, Mr Spalding’s) evidence and submissions have largely been directed towards an argument that the Respondent had persistently withheld the CCTV footage from him until the final hearing started, and that while he had not seen the footage, he still believed he had a strong case.[43]This argument is contrary to the facts both as I found them at the final hearing, and the material put before me in this application. As I set out in my Judgment and Reasons;a. I was provided with material at the liability hearing which tended to suggest that numerous attempts were made to provide the Claimant with the CCTV footage (paragraph 8);b. The Claimant did not engage with the allegations against him internally, or at the final hearing (paragraphs 62) and that he and Mr Spalding were “throwing up thin obstacles to participation with the process to justify non-engagement” (paragraph 74) and were not engaging meaningfully in the process (paragraph 84).[44]In terms of material put before me with the application, Mr Ashley sent a Dropbox link to the Claimant on 12 July 2023 which included the CCTV footage [Supp 31]. This was re-sent on 13 August 2023 (after the Claimant’s letter of 26 July 2023 in which he said he was having difficulties) and the following day it was explained how to download, view and share the video files [Supp 36].[45]In broad brush terms my findings at the final hearing were that the Claimant and Mr Spalding were pursuing a strategy of non-engagement at the internal disciplinary proceedings. I have no hesitation in concluding that they were pursuing a similar line during the Tribunal proceedings, certainly from summer 2023 onwards. Mr Spalding’s contention in his statement of 8 September 2024, and the contention in the “Initial Response of David Clark” (which I suspect was drafted by Mr Spalding), that there were numerous attempts to secure the CCTV footage by the Claimant, but that the Respondent did not supply it until the morning of the first day of the final hearing, are simply untrue. I accept the submissions of 10.1 Judgment – no hearing - rule 60 February 2018 the Respondent that the Claimant and Mr Spalding were in actual fact avoiding the footage as it would be devastating to any claim for unfair dismissal. On this point, I refer to paragraph 19 of my liability decision where I set out what the investigating officer, Mr Esposito, said about the footage; and paragraph 40 where I set out Mr Stuart’s evidence to the Tribunal, unchallenged by Mr Spalding, about what the footage showed.[46]I therefore consider that the Respondent has crossed the threshold of establishing that the Claimant has acted unreasonably, by operation of Rule 39(5). The Claimant has acted unreasonably in pursuing the specific allegations or arguments subject to the deposit orders.[47]Mr Ashley’s application is framed in a way to invite me to conclude that the Claimant has acted vexatiously or unreasonably independently of, or in addition to, the operation of Rule 39(5) ET Rules. He also pursues the application under Rule 76(1)(b) that it had no reasonable prospect of success.[48]I have not considered it appropriate to decide whether the Claimant had, aside from pursuing the claim after the deposit orders had been made, conducted the case unreasonably or pursued a claim which had no reasonable prospects of success. Unless there are particular features of the case which might need to be considered at stages two and three of the approach to cost outlined above, an applicant for costs need only get over the threshold once.[49]Had I been inclined to determine the application as Mr Ashley framed it, I would have decided that the Claimant acted unreasonably from mid July 2023 onwards when he and Mr Spalding were being sent the CCTV multiple times, but were not accessing it. I would not have determined that the claim had no reasonable prospects of success, but unhesitatingly agree with EJ McLaren’s assessment that it had little prospects of success. Appropriateness of a costs order[50]I have taken a number of factors into consideration in determining whether it is appropriate to make a costs order. Some of them I will deal with briefly as I will be repeating certain matters I have raised above.a. For the most part the Claimant was represented by Mr Spalding. Although he was a lay representative, as I set out in my liability judgment at paragraph 22 to 25 Mr Spalding has considerably more qualifications and experience than most lay representatives.b. Although I strongly suspect that Mr Spalding has been a factor in the fact and manner of this case being pursued, it is not possible to say quite how much of a factor. This question is probably irrelevant anyway, as the Claimant has done nothing to distance himself from the actions of Mr Spalding, who is presumed to act on his behalf. Even if 100% of the unreasonableness in pursuing the allegations or arguments is down to Mr Spalding, the responsibility lies with the Claimant (see Bennett). 10.1 Judgment – no hearing - rule 60 February 2018c. The Respondent has made numerous costs warnings from as early as its Response to the ET1 (see paragraphs 13b, 13c, 13e and 13 f above).d. During the final hearing Mr Spalding and the Claimant did not focus on the issues, but chose not to engage with the issues (see liability decision paragraph 62 and 84). A similar approach seems to have been made in resisting the application for costs. The Claimant and Mr Spalding are focused on the contention, which is just not true, that they have been chasing CCTV footage which the Respondent fails to provide.e. The Claimant was told in no uncertain terms that his unfair dismissal claim had little prospects of success for a variety of reasons in the deposit order decision of EJ McLaren.[51]I also had regard to the Claimant’s means. The documents he has supplied would tend to indicate that his outgoings exceed his income by around £300 per month. I note from the deposit order that EJ McLaren was satisfied that he had no savings or other assets, and I assume this is still the case. He has given no evidence of debts other than his liability to HMRC of £5257.23. However, I note that there is no documentary evidence of income or outgoings, and the Claimant says nothing about the amount or payment rate of overtime, just giving a basic figure.[52]These factors persuade me that it is appropriate to make a costs order in this case. The amount of costs order[53]I consider that it was unreasonable of the Claimant to pursue his claim after the deposit order was made on 8 August 2022. In the absence of a deposit order I would have considered that he conducted himself unreasonably after the summer of 2023. This does not really add anything. I do not strictly speaking have to tie the amount of costs into the unreasonable conduct that led to the order, but the timing of what I see as unreasonable conduct is a factor I bear in mind in exercising my discretion as to the amount of the order.[54]Looking at the Respondent’s cost schedule:a. I consider that it is appropriate to consider the sums incurred after the preliminary hearing on 8 August 2022 at which the deposit order was made. I therefore take off the brief fee for the preliminary hearing on that date, but award all other hearing fees, namely £8,500.b. I also conclude that it is appropriate to award the fees relating to the costs application itself, namely £1400.c. In relation to the section “Neil Ashley costs from 09.07.2021 to 27.07.2024” I note that the costs are not broken down so it is 10.1 Judgment – no hearing - rule 60 February 2018 impossible to tell when the costs were incurred. I would only consider awarding those incurred after 8 August 2022. I will not award any of these cost. In part it is because I cannot tell when the costs were incurred, and in part because, for reasons which I will shortly explain, the figure I come to adding the costs under the previous two sub-paragraphs (£8,500 plus £1400 plus VAT of £1980 – total £11,800) is an appropriate and proportionate sum, having regard to all the circumstances in the case.[55]As I set out above, the Claimant appears to have an income/expenditure shortfall of around £300 per month, but he has not set out what he earns from overtime. He will also be commencing his payment plan in respect of his liability to HMRC, and will be paying of £5,257.23 over the next 6 months at a rate of 876.20 a month. I am assuming he entered into this payment plan on the understanding that he could stick to it – or in other words, he has the “ability to pay” HMRC just short of £900 per month. He will have discharged his debt to HMRC by 1 May 2025.[56]If the Claimant began paying the Respondent from 1 June 2025 at a similar rate to the HMRC payment plan he could pay of the costs award of £11,800 by around July 2026. Standing back, and looking at this figure as a whole in the context of the unreasonable conduct by the Claimant (in continuing to pursue his claim after being made subject to deposit orders) we consider it an appropriate and proportionate sum.