Mr B Mehmet v Forrest Road Brewing Company Ltd: 2303644/2022
JUDGMENT
[1]The claim is amended to be directed against the correct respondent, Forrest Road Brewing Company Limited.[2]The claim for unfair dismissal for raising health and safety concerns(section100(c)(i) Employment Rights Act 1996) succeeds.[3]The respondent is ordered to pay compensation to the claimant of £9436.63.REASONS
[1]This case was listed for a 1 day hearing commencing at 10am. The claimant provided a number of emails with attachments to seek to establish his claim and assist with the calculation of compensation. These are referred to where necessary. The claimant gave evidence on his own behalf.[2]The respondent attended the hearing at 11.35am after judgment had been given. Case No: 2303644/2022 2Findings of fact
[1]The claimant was employed from 17 November 2021 to 22 August 2022 by the Forrest Road Brewing Company Limited. On 12 May 2022 he received a revised contract and a pay rise.[2]His work was considered satisfactory by Ms Sarah Dobsen, the Production Manager who texted him on 13 May 2022 “Your (sic) a legend, and one of the hardest workers I’ve ever met with the best attitude.”[3]The claimant drove beer delivery vans which on occasion were overloaded, see overweight manifests dated 29 June 2022, 5 and 14 July 2022. The claimant raised concerns on a significant number of occasions and refused to drive the vehicle when it was overloaded.[4]He was dismissed by letter dated 22 August 2022 for allegedly harassing other employees.[5]He was unemployed from the date of his dismissal until 5 November 2022 when he gained employment working at a rate of £11.50 per hour. On 1 July 2023, his wages increased to £13 per hour. He did not receive state benefits. Law DismissalLaw
[6]It is not disputed that the claimant was dismissed and that he does not qualify for “ordinary” unfair dismissal. What is in issue is the employer’s reason for dismissing the claimant. It is trite to say that the ‘reason’ for a dismissal is a set of facts known to the employer or a set of beliefs held by him which causes him to dismiss (Abernethy v. Mott Hay and Anderson [1974] ICR 323 CA per Cairns LJ; W Devis & Sons Ltd v. Atkins [1977] AC 931 HL). The issue is causation. In the present case, it is for the claimant to demonstrate that the predominant causative basis for the dismissal was his raising of a health and safety issue as he had under two years’ service.[7]Section 100 of the Employment Rights Act provides: 100 Health and safety cases (1)An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— (c) being an employee at a place where—(i) there was no such representative or safety committee, or(ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety,[8]Section 120 of the Employment Rights Act provides: Case No: 2303644/2022 3 120 Basic award: minimum in certain cases (1) The amount of the basic award (before any reduction under section 122) shall not be less than [£7,836] where the reason (or, if more than one, the principal reason)— (a) in a redundancy case, for selecting the employee for dismissal, or (b) otherwise, for the dismissal, is one of those specified in section 100(1)(a) and (b), [101A(d),] 102(1) or 103. Discussion and decision[9]The ET1 makes the claim against Peter Maclin Brown whereas the contractual documentation makes it clear that the employer was Forrest Road Brewing Company Limited. The claim was amended accordingly.[10]The claimant gave evidence consistent with the narrative of his ET1. He was considered to be a good worker. He complained about the overloading of the vans and provided supporting evidence of the overloading. He said that the recommended weight was 1300kg and the vans were loaded to 2100kg. He refused to drive the overloaded vans. Mr Brown was only concerned to have his beer delivered.[11]When he was dismissed by Mr Brown, he was told that it was because he had made Mr Tom Cheeseman cry on 18 August. When it was ascertained that Mr Cheeseman had made no such complaint, Mr Brown changed the reason for dismissal to that he had made multiple people feel uncomfortable at work. The letter of termination refers to harassment of other members of staff. He denied harassing anyone.[12]The reason for dismissal as narrated in the letter of dismissal is a development on a reason which was given by Mr Brown after the original reason he gave was found to be not true. The failure by an employer to establish a reason for dismissal of an employee of this length of service does not establish a claim against the respondent by itself. However, the Tribunal accepted all the evidence given by the claimant which demonstrated that he had complained about the overloading of vehicles and had refused to drive them. Mr Brown’s only concern was to get his beer delivered. On a balance of probability, the only reason for dismissing a good worker was that he had made complaints about overloading, refused to drive the overloaded vehicles which, at the very least, inconvenienced Mr Brown, who dismissed him for that reason. Section 100(1)( c) is applicable to his dismissal.[13]The claimant was born on 23 July 1977. He provided pay slips from his previous and present employment. The Tribunal decided to award compensation of a basic award of one and a half week’s gross pay amounting to £1031.25. The statutory minimum basic award did not apply in this case. The Tribunal also awarded compensation of £8405.38 being loss of wages from his dismissal until 5 November 2022 when he obtained employment at £11.50 per hour and continuing loss from 5 November to 1 July 2023 when he started to be paid £13 per hour. The Tribunal declined to award any continuing loss thereafter and any other heads of loss. The total award is £9436.63. Case No: 2303644/2022 4[14]The ET3 refers to the termination letter. On 9 November 2022, the respondent was asked by the Tribunal whether it intended to tick the box indicating the claim was not defended. The respondent replied on 24 November asking if the case had ended. On 13 December 2022, the respondent was informed that in the light of the claim not being defended, judgment might be issued against it. The claimant was also asked to provide information about the losses he had sustained. A hearing was fixed for 15 August 2023. On 15 May 2023, the claimant wrote to the Tribunal asking for the date to be changed as he was unable to get time off work. On 14 August 2023, a hearing was fixed for 8 September 2023. On 16 August 2023, Mr Brown emailed the Tribunal to say was disputing the claim and would attend the hearing on 8 September. He made no application similar to that of the claimant to say he was on holiday on the September date. At 11.16 on the day of the hearing, after having been contacted by the clerk, Mr Brown emailed to say he had the hearing down for October. When he joined the hearing, he said he was on a family holiday in America. He restated the terms of the termination letter but was not invited to participate further as judgment had been given. He said he would seek advice from his HR department and the Tribunal urged him to engage with the claim and the judgment when it arrived and advised in relation to procedures and timescales for reconsideration and appeal. ......................................................... Employment Judge Truscott KC Date: 12 September 2023 Case No: 2303644/2022 1 THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE TRUSCOTT KC BETWEEN: Mr B Mehmet Claimant AND Forest Road Brewing Company Limited Respondent JUDGMENT upon RECONSIDERATIONLaw
[1]The Tribunal grants the application for reconsideration of the Tribunal’s judgment dated 27 February 2023 to the following extent: The correct name of respondent is Forest Road Brewing Company Limited. Otherwise, the application is rejected.[3]The relevant Employment Tribunal rules for this application read as follows: RECONSIDERATION OF JUDGMENTS Principles Case No: 2303644/2022 2 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise, the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.[4]In accordance with rule 70, a TTribunalribunal may reconsider any judgment “where it is necessary in the interests of justice to do so”. On reconsideration, the decision may be confirmed, varied or revoked. If it is revoked, it may be taken again.[5]The case authorities remind Tribunals that there is no automatic entitlement to reconsideration for any unsuccessful party. On the contrary, there is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation. Reconsideration of a judgment should be regarded as very much the exception to the general rule that Tribunal decisions should not be reopened and relitigated. In Case No: 2303644/2022 3 reference reference to the antecedent review provisions, iinn SStevensontevenson v. Golden Wonder Ltd [1977] IRLR 474 EAT, Lord McDonald said that the (exceptional) process was ‘not intended to provide parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evevidenceidence adduced which was available before’.[6]Earlier guidance as to the approapproachach ofof TTribunalsribunals to the matter of reconsideration remains equally pertinent. In Trimble v. Supertravel Ltd [1982] ICR 440, the EAT made the following observations: 6.1. 6.1. it is irrelevant whether a tribunal’s alleged error is major or minor; 6.2. 6.2. what is relevant is whether or not a decision has been reached after a procedural mishap; 6.3. 6.3. since, in that case, the tribunal had reached its decision on the point in issue without hearing representations, it would have been appropriate for it to hear argument and to grant the review if satisfied that it had gone wrong; 6.4. 6.4. if a matter has been ventilated and properly argued, then any eerrorrror of law falls to be corrected on appeal and not by review.[7]When dealing with the question of reconsideration, a Tribunal must seek to give effect to the overriding objective to deal with cases ‘fairly and justly’. The Tribunal should also be guided bbyy the common law principles of natural justice and fairness. Her Honour Judge Eady QC (as she then was) gave guidance as to the approach to be taken iinn Outasight VB Ltd v. Brown [2015] ICR D11 EAT. Although a tribunal’s discretion can be broad, it must be exercised judicially “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”.[8]The claimant does not have the requisite 2 years’ service to claim “ordinary” unfair dismissal. The narrative in the ET1 lleedd the Tribunal to register the claim under PID. The respondent was sent a notice of the claim on 26 October 2022. The respondent filed an ET3 which made reference to harassment by the claimant and the letter of dismissal. In paragraph 14 of the judgment it is narrated that: On On 9 November 2022, the respondent was asked by the Tribunal whether it intended to tick the box indicating the claim was not defended. The respondent replied on 24 November asking if the case had ended. On 13 December 2022, the responderespondentnt was informed that in the light of the claim not being defended, judgment might be issued against it.[9]To further expand upon the foregoing narrative, the letter of 9 November 2022 asked the respondent to reply by 16 November. The respondent replied on 2244 November as above. The letter asks “ Can you confirm that the case has ended please.” On 1133 December 2022, the Tribunal wrote to the respondent “In your response to the claim you stated that no part of it is contested. Under rule 21 of the above Rules, a judgment may now be issued. You are entitled to receive notice of any hearing but you may only participate in any hearing to the extent permitted by the Employment Judge who hears the case.case..”.” On the same date, the claiclaimamantnt was asked set out what he wwasas claimingclaiming withwith Case No: 2303644/2022 4 supporting supporting documents. On 13 February 2023, standard orders were issued in relation to the steps to be taken in preparation for the hehearingaring which required the respondent to take certain steps. TheThesese ordersorders wouldwould notnot ordinaordinarilyrily be applicable where the participation of the respondent had been limited. In the prehearing check of 14 August 2023, parties were asked to confirm if the hearing was proceeding. The standard terms of the letter again indicate that action is required from the respondent but this would not apply in the present case. On 14 August, the claimant confirmed he wishes to continue with the case. The respondent replied aass follows: “Hi there If the claimant would like to continue wasting your, my and tax-payers money he is welcome to continue doing so. As mentioned numerous times, the claimant was terminated for breaching company conduct as stated in our company policy and handbook. Termination letter was served on the same day (attached).He is owed no money and therefore this case need not continue. If he would like to continue with his game, I will happily be there on September 8th to show the court his termination letter. There's nothing else to say from my side. Thank you Pete”[10]AtAt thethe hearinghearing,, ththisis TribunalTribunal wishewishedd to be satisfied that it had jurisdiction to hehearar the claim. Although the claim hahadd been registered as PID, the claiclaimamantnt confirmed that he was bringing a health and safely case. Hence the narrative in paraparagraphsgraphs 3 and 10 of the reasons. It is not known if the respondent was ever told that the claim was proceeding as a health and safety claim. The Tribunal then proceeded to aawwardard compensation. 1. 1. To turn to the heads of the respondent’s application 1.Law
[1]TheThe claiclaimamantnt did not actively pursue the claim. According to the foregoing, the respondent is noted as not contesting the claim.[2]The judgment deals with evidence never disclosed to the respondent. As the respondent was not contesting the claim, he could only participate to the extent permitted. TThishis would have been likely to be limited addressing the award of compensation. It is not known iiff the information before the Tribunal for this purpose was providprovideedd to the respondent but it was provided to the Tribunal on 6 September. TThehe respondent joined the hearing too late to participate in that exercise.[3]The judgment was made in the respondent’s absence. This is correct. Reference has already been made in the judgment to the contradictory statements made by the respondent in relation to knowledge of ththee datedate ofof thethe hehearing.aring.[4]There are reasonable prospects of successfully defending the claim. The Tribunal does not agree. TThehe Tribunal does not find itself in agreement with the narrative now provided by the respondent that he responded to correspondence in a timely manner. The Tribunal notes tthathat thethe respondentrespondent failfaileded to answer the letter of 13 December which was taken as consent to judgment passing against it. The respondent thereafter received standard communications which were not appropriate to it being limited in its participation. TThehe Tribunal is unaware when the case became amended to one of health and safety which potentially carries Case No: 2303644/2022 5 serious serious implications for the respondent. The respondent said he had HR advice available to him. Plainly he did not seek it. The respondent should have indicated it was defending the claim at an early stage. It did not do so and was in no position to do so by the time of the hearing. Its participation in the hearing would have been limited but the respondent joined the hearhearinging too late even for that limited participation.[12]This Tribunal is bound to follow the procedural stages determined by previous employment judges and considers that there are no grounds for reconsideration of its own judgment under rule 71 except to correcorrectct the error in the name of the respondent which was typographical. ......................................................... I D Truscott KC