[1]Each of the Claimant’s complaints that: a) He was constructively unfairly dismissed by the Respondent; b) He is owed pay in lieu of the holiday that he had accrued but not taken on the termination of his employment; c) He was wrongfully dismissed and is owed notice pay; and d) The Respondent made unauthorised deductions from his wages, or alternatively breached his contract of employment by the amount he was paid, in respect of a period of sick leave when the Claimant was not paid in full when he says he should have been, is not well-founded and is dismissed.[2]The counterclaim brought by the Respondent is well-founded, and the Claimant is ordered to pay the following sums to the Respondent: a) £1,009.28 in respect of company sick pay claimed by and paid to him; and b) £5,625.42 in respect of Respondent property which the Claimant did not return on the termination of his employment, 1 of 2 Case Numbers: 2304651/2022; 2305010/2023 so £6,634.70 in aggregate.
REASONS
Conclusions
[1]These written reasons are provided on the application of the Claimant.
Background
[2]The Respondent is a gas distribution company managing the network which distributes natural and green gas to many homes and businesses in Scotland and Southern England.
BACKGROUND
[3]The Claimant worked for the Respondent from 3 January 2020 until 29 August 2022, latterly in the role of First Call Operative (FCO).[4]The Claimant resigned from his employment with the Respondent, and his employment came to an end on 29 August 2022. The Claimant says he resigned in response to a fundamental breach of his contract of employment by the Respondent. The Respondent denies this, and says that the Claimant’s employment came to an end by reason of resignation, and that the Claimant resigned to avoid disciplinary proceedings. In the alternative, the Respondent says that it fairly dismissed him for some other substantial reason, that being the total breakdown of the relationship between the parties, and the Respondent’s loss of trust and confidence in the Claimant, due to the Claimant’s falsely claiming 1 of 44 sick leave and sick pay while working for a competitor (which employment the Claimant agrees commenced on 7 March 2022).[5]Following a period of ACAS Early Conciliation which began on 24 September and ended on 5 November, both of 2022, the Claimant presented a claim to the Employment Tribunal on 5 December 2022 (the Claim), which was given the case number 2304651/2022 by the Tribunal.[6]In its Response, presented on 15 February 2023, the Respondent presented a counterclaim, seeking:a. Repayment of the sick pay paid to the Claimant by it in the period 7 March 2022 to 29 August 2022. The Respondent says that it offset some of that sick pay against the payment in lieu of accrued but untaken holiday that the Claimant would otherwise be entitled to, so it sought repayment of the balance of £2,746.97; andb. The value of its property which it says the Claimant retained, amounting to £5,625.42 (the Counterclaim). This was given the case number 2305010/2023 by the Tribunal.[7]The Counterclaim was served on the Claimant by the Tribunal on 19 September 2023. The Claimant was informed that if he wished to contest it he would need to send a response within the next 28 days (i.e., on or before 16 October 2023).
The complaints
[8]The Claimant says that:a. He was constructively unfairly dismissed by the Respondent (Complaint 1);b. He is owed pay in lieu of the holiday that he had accrued but not taken on the termination of his employment (Complaint 2);c. He was wrongfully dismissed and is owed notice pay (Complaint 3); andd. The Respondent made unauthorised deductions from his wages, or alternatively breached his contract of employment by the amount he was paid, in respect of a period of sick leave when the Claimant was not paid in full when he says he should have been (Complaint 4).[9]The Counterclaim is a breach of contract claim brought by the Respondent against the Claimant, alleging that:a. As he was in fundamental breach of his employment contract with the Respondent from the date he started working for Centrica (7 March 2022), the Claimant was not entitled to any sick pay from the Respondent following that date, and therefore the sum of £5,860.75 (paid to him in respect of sick leave from 7 March 2022 onwards) is owed by the Claimant 2 of 44 to the Respondent. Against this the Respondent has set-off the sum of £3,452.70 which the Claimant would otherwise be entitled to receive by way of compensation for annual leave he had accrued but not taken on the termination of his employment. This, the Respondent says, leaves an outstanding sum of £2,408.05 which it is owed by the Claimant (Complaint 5); andb. The Claimant had not returned various items of its property to it, which the Respondent values at £5,625.42 (Complaint 6). In aggregate, therefore, the Respondent says that the Claimant owes it the sum of £8,033.47 by way of damages for breach of contract. The hearing Representation[10]The Claimant presented his own case, and the Respondent was represented by Miss Quigley, Counsel. Adjustments[11]At the outset of the hearing, when asked if either party was seeking any adjustments to the typical conduct of these hearings:a. The Respondent confirmed that its attendees did not require any; andb. The Claimant said he may need more regular breaks given an ongoing health condition. He accepted that he had provided no medical evidence of that health condition, but the Tribunal also explained that additional breaks can usually be accommodated, and encouraged the Claimant to ask for breaks when he needed them.[12]During the hearing there were instances when the Claimant asked for additional breaks, and times when he was asked by the Employment Judge if he needed a break in light of upset or signs stress he was displaying. Every break requested by the Claimant was accommodated. The complaints and issues in the case[13]Quite some time was spent at the outset of this hearing discussing the complaints in the case and the issues between the parties.[14]The Employment Judge observed that those matters had been the subject of some discussion in two Preliminary Hearings – the first before EJ Rice-Birchall on 12 June 2023, when a list of complaints and issues had first been compiled, and the second before EJ Truscott KC, when those complaints and issues had been further discussed.
LAW
[15]The Claimant had discussed with EJ Rice-Birchall that he considered that his Claim Form included complaints of protected disclosure detriment, but she 3 of 44 disagreed and determined that he would require the permission of the Tribunal following an application to amend. This is recorded in the written record of that hearing dated 13 June 2023. Anticipating that the Claimant would then make an application to amend, EJ Rice-Birchall listed a further Preliminary Hearing, which came before EJ Truscott KC on 7 September 2023.[16]An application to amend made by the Claimant was discussed in that hearing. That application was extensive, and included complaints of protected disclosure detriment under section 43B of the Employment Rights Act 1996 (the 1996 Act) and health and safety detriment (section 44 of the 1996 Act). EJ Truscott:a. Permitted some paragraphs of that application to be added to the Claimant’s claim, but by way of background only (namely, paragraphs 71 to 93 of the Claimant’s document entitled “Expanded Particulars of Claim”, which appears in the Bundle). Specifically EJ Truscott recorded that this amendment was allowed “on the basis that the narrative of events prior to his injury was background and no new claims were being introduced”;b. Rejected the remainder of the Claimant’s application; andc. Recorded that the Tribunal had refused the Claimant’s application to protected disclosure detriments to his list of complaints. Those decisions are recorded in the written record of that hearing dated 7 September 2023.[17]The Claimant wished to renew his application to amend his claim to add in complaints of protected disclosure detriments on the basis of health and safety breaches within the Respondent’s organisation. The Employment Judge refused this, noting that this Tribunal has no authority to reopen a decision of an Employment Tribunal on that matter, and that was a matter that the Claimant could seek to appeal to the Employment Appeal Tribunal. Alternatively, as the Claimant was asserting that there had been judicial bias in favour of the Respondent in either or both of those hearings, those matters could be raised by the Claimant before the Judicial Conduct Investigations Office (the JCIO). The Claimant also referred to wishing to amend his claim to include complaints of health and safety detriments under section 44 of the 1996 Act, but he articulated no such complaint, and instead referred to the application to amend he had already made which related to protected disclosure detriments.[18]Some further points of clarification were asked by the Employment Judge, and welcome clarity was provided by the Claimant:a. He confirmed that the points he made regarding his being underpaid at the outset of his employment in the period January to September 2020 are made by way of background only, and do not form part of the legal complaints to be considered as part of this case;b. The same applies to the period September and October 2020, upon his qualification. Those matters are mentioned by way of background only; 4 of 44c. He is not pursuing any breach of the Working Time Regulations 1998 (the 1998 Regulations), save that he says that he should have been paid on the termination of his employment for his accrued but outstanding holiday entitlement; andd. He understood that this Tribunal has no jurisdiction to determine negligence complaints.[19]The Respondent accused the Claimant of dishonesty on a number of bases. These allegations were plainly put to the Claimant in cross-examination, and the Employment Judge reminded the Claimant of those ahead of submissions. At the Employment Judge’s request, at the end of the day before submissions were due to be made, the Respondent specifically listed the points it accused the Claimant of being dishonest about, and the Claimant was given the opportunity to address those in submissions (as well as in evidence). Strike-out application[20]The Claimant had previously made an application to strike-out the Respondent’s “claim”. This extant application was dealt with on the first morning of the hearing. The Claimant clarified that his application was to strike-out the Respondent’s Response to the Claim and the Counterclaim raised in that Response. The Claimant pointed to 21 numbered points in his letter to the Tribunal of 19 February 2025. Some of these were actually part of the same ground, and in fact the Claimant, in that letter (as expounded upon orally in the hearing) relied upon five grounds when saying that the Response to the Claim, including the Counterclaim, should be struck out by the Tribunal:a. The first ground relied upon by the Claimant was that the Respondent was non-compliant with Tribunal Orders, namely, the Order to disclose relevant documents, and the Order to prepare the hearing bundle by 8 December 2023 (Rule 38(1)(c) of the Employment Tribunal Procedure Rules 2024 (the ET Rules)). i. Upon enquiry, it seemed that the material that the Claimant believed the Respondent had failed to disclose comprised various text messages and WhatsApp messages he recalled sending, and having responses to from Respondent personnel, as well as call records and recordings of telephone calls to the Respondent’s call centre (the OCC), all on 24 November 2021, but he could not produce those as the mobile telephone number he had been using at that time had since broken. The Claimant said those messages and telephone records should be in the possession of the Respondent or its personnel, whom he named as Chris Rymer, Lee King and Mr Jackson, and he considered there may be others as well (the Averred Undisclosed Material). 5 of 44 ii. The Respondent’s position was that it had conducted a reasonable search and had disclosed all relevant material. Miss Quigley acknowledged that there was one email chain in the Claimant’s Further Bundle which was an email chain the latest email of which the Respondent had not disclosed, albeit that the remainder of the chain had been. This, the Respondent said, was an error and was not intentional. Miss Quigley also pointed out that the Claimant’s position was that he had this email for over a year and he had not disclosed it, so if anything, she said, this showed non-compliance with Tribunal Orders by the Claimant. iii. As for the production of the hearing bundle, the Respondent said that the delay in doing so was attributable to the conduct of the Claimant. It outlined the timeline of events as follows:• On 20 October 2023 the Respondent proposed that the parties exchange lists of relevant documents in their possession – but it received no response from the Claimant;• On 27 October 2023 the Respondent provided the Claimant with soft copies of its disclosure and asked the Claimant for his;• On 7 November 2023 the Claimant emailed the Respondent to say that he was unable to access the documents the Respondent had sent;• On 23 November 2023 the Respondent sent the Claimant a OneDrive folder and checked whether the Claimant could access that folder, and offered to send a hard copy of the material, to which the Respondent received no response from the Claimant;• On 27 November 2023 the Respondent sent chaser email, offering to send a hard copy of the document to the Claimant;• Because the Respondent received no response, it made an application for an Unless Order from the Tribunal on 5 December 2023;• The Claimant then provided his disclosure on 12 December 2023;• The Respondent sent the Claimant a draft hearing bundle on 8 January 2024 and asked the Claimant for comments on that draft; and• On 24 January the Respondent sent the Claimant the final version of the bundle, in soft and hard copy formats. The Claimant did not dispute the above description, but said that the Respondent had failed to mention that there had been a change 6 of 44 in personnel at the Respondent’s solicitors working on the matter, and the new solicitor who had made the application for the Unless Order did so on a false basis, as the Respondent held all the documentation. The Employment Judge explained that the burden of proof in a strike-out application sits with the applicant. Here, the Employment Judge was far from persuaded that there had been a failure by the Respondent to comply with Tribunal Orders, save for the production of the bundle where that failure did not appear to be unreasonable in light of the undisputed timeline of events set out by the Respondent, and the delay occasioned by the Claimant’s conduct. Even if there has been delay occasioned by the Respondent, it is clear, in the Tribunal’s view, that striking out the Response and the Counterclaim would hinder the overriding objective to deal with cases fairly and justly. There has been no deliberate or persistent disregard of required procedural steps by the Respondent, and nor has the Respondent’s conduct made a fair trial impossible (James). This ground did not succeed.b. The second ground relied upon by the Claimant was that the claim was not actively pursued by the Respondent (Rule 38(1)(d)). In oral representations to the Tribunal, it was clarified that the Claimant was referring to both the Respondent’s resistance of the Claim and its pursuit of the Counterclaim. The Tribunal was entirely unpersuaded by this ground. The Respondent has clearly been pursuing its defence of the Claim and the Counterclaim, as correspondence with the Tribunal shows. There has been no intentional or contumelious delay on the part of the Respondent, and nor has there been inordinate or inexcusable delay (Evans).c. The Claimant’s third ground was that the Counterclaim is vexatious and has no reasonable prospects of success (Rule 38(1)(a)). Again, the Tribunal was entirely unpersuaded by the Claimant’s arguments here. While he may consider the Counterclaim to be vexatious and have no reasonable prospects of success, that is far from clear on the terms of the Grounds of Resistance which, at strike-out stage, are taken at their highest. The Employment Judge explained that this does not mean that the Tribunal considers that the Counterclaim will succeed – (at the stage of determining the strike-out application) evidence was yet to be heard about it – but it will come down to a testing of the relevant evidence, and is not a matter that is suitable for strike-out (Ezsias, Tayside, Cox).d. The fourth ground was that the manner in which the Respondent had conducted the proceedings has been scandalous, unreasonable or vexatious (Rule 38(1)(b)). The Claimant made four assertions in this regard, that: 7 of 44 i. The Respondent had failed to comply with its duty of disclosure – again, pertaining to the Averred Undisclosed Material; ii. The Respondent had failed to comply with the Tribunal’s Orders pertaining to disclosure; iii. The Respondent had made a false application, perverting the course of justice and deceiving the Tribunal, when it made its application for an Unless Order relating to the Claimant’s failure to disclose material when the Respondent knew the Claimant did not hold any relevant material. This, the Claimant contended, had resulted in judicial bias in favour of the Respondent, which the Claimant says is illustrated by the fact that correspondence and applications made by the Respondent were answered speedily by the Tribunal, whereas the same was not true of correspondence and applications from the Claimant; and iv. The Respondent had failed to assist the Tribunal in its overriding objective. (i) and (ii) are dealt with above – the Claimant has not satisfied the Tribunal that the Respondent failed to comply with its duty of disclosure or failed to comply with the Tribunal’s Orders (save where that failure was due to the Claimant’s conduct). As for (iii), this appeared to derive from the Claimant’s failure to communicate to the Respondent that he had no documents to disclose, which he should have done. The Employment Judge referred the Claimant to the Judicial Conduct Investigations Office, but even if there had been judicial bias in the Claimant’s favour (which was not accepted by the Employment Judge), that did not assist in the Claimant’s application that the Counterclaim should be struck out on the basis of the Respondent’s conduct. In relation to (iv), the Claimant asserted that all Respondent property was returned by him in early September 2022 to the Respondent’s Weymouth depot. In addition, the Claimant says that the part of the Respondent’s Counterclaim that is in respect of the value of what it says is non-returned personal protective equipment (PPE) is in breach of section 9 of the Health and Safety at Work etc Act 1974, as the Respondent cannot reclaim the value of that PPE. The Claimant offered no evidence besides his say-so that he returned this equipment, and the section 9 of the Health and Safety at Work etc Act 1974 states: “No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions.” 8 of 44 It is a matter of interpretation and argument as to whether the PPE that the Respondent sought to have returned to it was provided to him in the course of his duties, and whether seeking to have it returned at the conclusion of his employment offends section 9. It is not a matter that lends itself to strike-out. This fourth ground does not succeed.e. The fifth ground was that a fair hearing was no longer possible (Rule 38(1)(e)). The Claimant based this contention on the failure he alleges on the part of the Respondent to disclose the Averred Undisclosed Material, and judicial bias. The Employment Judge was not satisfied either that the Respondent had failed to disclose relevant material in its possession, nor of judicial bias. It is evident that a fair trial is still possible. Ground five also does not succeed. The documentary evidence[21]The parties had agreed a Bundle of 444 pages. Two working days prior to the commencement of the hearing, the Claimant served additional documents on the Respondent running to 159 pages in aggregate (the Claimant’s Further Bundle), and informing it that he would be applying to have those documents added into evidence before this Tribunal.[22]The Claimant applied to have each of 29 documents comprising those Claimant’s Further Bundle admitted into evidence. The Respondent did not object to the admission of two of those, being:a. An email chain between the Claimant and Mr Jackson with the subject “RE New Rota Changeover” (three pages); andb. Some WhatsApp messages between the Claimant and Mr Jackson on 25 November 2021 (one page). The Tribunal could see the relevance of those documents to the complaints and issues in the case, and admitted those.
The hearing
[23]The Tribunal admitted two additional documents from the Claimant’s Further Bundle, those being:a. Screenshots of various WhatsApp messages with redacted names, which appear to show some messages exchanged between the Claimant an unnamed others at the time of the Incident (nine pages); andb. The Respondent’s Code of Conduct (37 pages). The first document appeared to be relevant to Complaint 1, and the Claimant asserted that the part of the second document that related to the Respondent providing a psychologically safe workplace was also relevant to Complaint 1. 9 of 44[24]The Claimant handed the Employment Judge, but not the Respondent, a letter he said he sent to the Tribunal on 23 September 2023 by post, though there is no record of any such letter having been sent to or received by the Tribunal. That letter made complaints about the conduct of the Employment Judges who heard the first and second Preliminary Hearings, and the Employment Judge in this hearing reiterated that those would be matters potentially of appeal to the EAT or for complaint to the JCIO – those are not matters which can be dealt with by this Tribunal. Audio/visual files[25]The Claimant also applied for two video files to be admitted into evidence. Those files had not been shown to the Respondent in advance of the hearing (save for a brief exert of one of them). When the Claimant began to make his application for the Tribunal to admit those files, the Respondent interjected to say that those files were covert recordings of Respondent employees relating to an internal Teams meeting in the Respondent to which the Claimant was not a party, and which relates to a matter which is the subject of an extant Police investigation (a matter referred by the Claimant to the Police). There was an observer in the public gallery, and the Employment Judge Ordered that the hearing proceed in private to deal with this application before returning to a public hearing. This coincided with the lunch break, so lunch was taken and the hearing resumed in private.[26]Over the lunch break on the first day of the hearing, the complete version of those files was shown to the Respondent, and viewed separately by the Employment Judge.
Law
[27]Having viewed those files, the Employment Judge was clear that they do not relate in any way to the list of complaints or issues within the scope of these cases, and so those files were not admitted into evidence. The hearing then returned to be a “public” hearing, and the observer returned to the public gallery. Disclosure[28]The Claimant made numerous complaints that the Respondent’s disclosure was incomplete, referring to the Averred Undisclosed Material.[29]Miss Quigley disputed the Claimant’s contention that the Respondent had not complied with its duty of disclosure, noting that the Respondent had made reasonable searches of documents relevant to the list of complaints and issues.[30]Miss Quigley pointed out that:a. The Claimant did not mention Mr Rymer in his witness statement in connection with the Incident;b. Mr King is not mentioned in the Claimant’s witness statement at all; and 10 of 44c. Mr Jackson’s position (as set out in his witness statement) is that he was not contacted by the Claimant on the date of the Incident, and therefore there would be no correspondence between the Claimant and him, consistent with the results of the Respondent’s search.[31]Miss Quigley also noted that the fact that this material may have at some time existed did not mean that it was in the Respondent’s possession or control at the time when it became subject to the duty to disclose.[32]The Claimant indicated that he would look again overnight (on the evening of the first day of the hearing) to see if he had any proof that the Respondent had not complied with the duty to disclose all relevant documents.[33]On the second day of the hearing (after his evidence began on the first day), the Claimant informed the Tribunal that:a. He had been sent some messages relevant to what he avers was withholding of his pay in December 2021 (issue 1.1.1.2); andb. His previous mobile telephone had in fact been “partially” fixed on the Tuesday before this hearing commenced, but that with all he had to do in preparation for this hearing he had not had the opportunity to pull the relevant records off that device and to disclose them to the Respondent – however, he could see enough on that to know that the Respondent had not complied with its duty of disclosure. The Claimant was reminded of his ongoing duty of disclosure, and the Tribunal took a brief break for the Claimant to show those messages, etc., to Miss Quigley, and the parties were told that any application to admit new evidence must be made on their return.[34]Upon the parties’ return, neither applied for any additional material to be admitted into evidence. The Employment Judge expressly noted this, and the hearing proceeded. Witness evidence[35]After dealing with all of those preliminary matters (which took nearly all of the first day of the hearing), the following witnesses provided evidence to the Tribunal:a. The Claimant, on his own behalf; andb. Each of: i. Karen Baldwin, who is the Respondent’s HR Manager, and dealt with a number of matters relating to the Claimant; ii. Clare Smith, an HR Business Partner in the Respondent’s organisation; iii. Thomas Jackson, who was the Claimant’s line manager for the period April 2020 to December 2021; 11 of 44 iv. Simon Spicer, Mr Jackson’s line manager while Mr Jackson linemanaged the Claimant, and Mr Shaw’s line manager while Mr Shaw line-managed the Claimant; and v. Mark Shaw, who was the Claimant’s line manager for two periods of the Claimant’s employment with the Respondent: from December 2021 to the end of that employment.[36]The Claimant cross-examined the Respondent’s witnesses. He initially appeared to struggle to understand the difference between points he had asserted and points that were accepted between the parties. The Employment Judge had to instruct him to correct questions he put to Ms Baldwin on four occasions because she felt that Ms Baldwin was being misled by the Claimant prefacing his questions by points like “As we have already established”, followed by a contentious point that was described by the Claimant using his take on that point. The Employment Judge told the Claimant that he must be careful not to mislead the witness, and on the fourth time this happened said that if it happened again, the Claimant would need to supply his questions to the Tribunal for the Employment Judge to check whether the phrasing of question was misleading. A break was then taken for the Claimant to examine his questions to ensure they were not misleading. The Claimant complied and did not ask questions in a misleading way again. The hearing window[37]The hearing was relisted after the aborted February 2024 hearing for five days beginning on 10 and ending on 14 March 2025. Unfortunately the Employment Judge was not able to sit for five days, and so the hearing length was curtailed to four days. As the Employment Judge explained, approximately one third of any hearing was reserved for deliberation and judgment-writing on the part of the Employment Judge, and so the reduced hearing length did not mean a reduced opportunity for the parties to present their cases in relation to the Claim or Counterclaim, and indeed preliminary matters, evidence and submissions were not completed until lunchtime on the fourth day of the hearing (as would have been the case had five days of Tribunal time been available).[38]In any event, the Employment Judge gave the parties the opportunity to return for oral judgment, rather than a written reasoned judgment being sent to the parties, so this matter was heard and determined over five days in any event.[39]Each of the Respondent and the Claimant made submissions in support of their respective positions. Facts[40]The Claimant started working for the Respondent on 3 January 2020 as a First Call Operative (FCO) – an emergency gas engineer, having entered into a contract of employment with the Respondent on 27 December 2019. 12 of 44 Key provisions of the Claimant’s contract of employment with the Respondent[41]Among other provisions, that contract provided that:a. Except where varied by the terms therein described, the Claimant’s terms and conditions of employment “were in line with our SGNC Joint Agreement. You will be able to view the SGNC Joint Agreement in detail on our internal intranet when you start, or you can request a paper copy.”b. His working hours were 38.75 hours per week on average, under a rota system which: i. Classified Mondays to Saturdays as normal working days; ii. Involved working within the parameters of 8am to 8pm; and iii. Provided that certain work performed outside of the rota was classed as overtime and paid at a higher rate. The contract also provided that: “To provide certainty and reassurance, we will strive to extend the above rotas as far into the future as possible, and we cannot require you to transfer from one rota to another, or make changes to your agreed rota, at less than 2 weeks’ notice (unless otherwise mutually agreed)”.c. “Full terms applying to sick pay are specified in Part F of the SGNC Joint Agreement, but are summarised below”. The summary below indicated that sickness absence for employees who had more than one year’s service would be paid at full pay for 13 weeks and a further 13 weeks at half-basic pay.d. “While employed by us, you will be required to comply with all of our policies and other rules and regulations, and as may be amended by us from time to time. There are some key rules that you should make a point of familiarising yourself with… These are as follows –• Employee Rules”.[42]The SGNC Joint Agreement was updated with effect from April 2021, and included the following:a. “As from 2nd December 2011 (the ‘Agreement Date’), this Joint Agreement shall be deemed to be included in all contracts of service between SGNC and employees covered by this Joint Agreement in entire substitution (except where specified elsewhere within this Joint Agreement) for any other individual or collective agreement (whether written or oral) in force for those employees at the time.” (A.1.b)b. “We reserve the right to deduct from employees’ remuneration any sums due to us, including, without limitation, any overpayments…”. (D.2.g)c. Sick pay provision for employees whose period of service exceeded one year as “15 weeks at Full basic pay, 13 weeks at half-basic pay”. (F.1.e) 13 of 44[43]The Employee Rules document, updated in December 2021, provided: “Never knowingly compete against, or divert business away from the Company. Obtain the Company’s express permission before undertaking work for or on behalf of another employer, organisation or person(s) for your own personal gain.” The Rota Matter, 14 to 15 November 2021[44]For the period April 2020 to December 2021, the Claimant was line-managed by Mr Jackson.[45]The accepted position is that, particularly in November 2021, the Respondent’s FCOs were stretched. FCOs perform safety-critical work, and for that reason the Respondent requires that certain shifts are covered with pre-set numbers of staff. At the time with which this Claim is concerned, the Respondent issued rotas for the Claimant’s team every six months.[46]A new rota was introduced for all the FCOs in the Claimant’s division in October 2021. On 1 November 2021 Mr Jackson wrote to the Claimant to advise him that, due to the new rota changeover, the Claimant was scheduled to work on a day shift between 08:00 and 16:15 on Sunday 14 November 2021 (on the old rota), but was also scheduled to work a night shift starting at 23:45 on that same day (pursuant to the new rota). Working both of those shifts was incompatible with the Respondent’s requirements for FCOs to have rest time, and would take the Claimant above 38.75 hours for the week. The night shift was a safety-critical shift – the Respondent did not have sufficient FCOs scheduled to work it – whereas the day shift could be removed from the Claimant without difficulty.[47]Mr Jackson asked the Claimant whether he would prefer to work a different shift, on another day, instead of the 14 November 2021 day shift, to which the Claimant replied, on 3 November, that: “I would rather work a longer shift on the Sunday and then have my two rest days. So eg: 0800-2345.”[48]Mr Jackson replied a few minutes later to the effect that that would mean working 24 hours, which was not permissible, so the Claimant would need to have the Sunday day shift off. The Claimant replied, a few minutes after that: “No what I mean is not to do the night shift, as that’s what I thought your message meant. It makes more sense for me not to do the night shift from a fatigue standpoint and do a longer shift Sunday with 2 days rest. That way I do not lose money and I am not fatigued.”[49]Mr Jackson replied a few days later on 8 November 2021, copying in a trade union representative, saying that: 14 of 44 “Unfortunately we cannot accommodate both shifts being 0800-1615 on the 14th and then 2345-0800 for 14th into 15th. We can either:• Remove 14th 0800-1615 then give you a day off on 18th/19th/20th or 21st to level the hours for 38.75 over the two weeks• Remove 0800-1615 and put in place a standby then give you a day off on 18th/19th/20th or 21st to level the hours for 38.75 over the two weeks. We need you for the night shift due to the company requirements of network coverage... Please let me know which option you’d like to take before end of play Thursday and I’ll resolve from there.”[50]There is no further response from the Claimant in the Bundle.[51]The Claimant worked the double-shift on 14 November (into 15 November) 2021, and subsequently submitted his timesheet to that effect.[52]The parties agree that the Claimant submitted the timesheet for that period three times, and Mr Jackson refused to approve it on each occasion. Mr Jackson’s evidence was that, in order to reject a timesheet, he had to comment on it to say why, so he says that the Claimant was clear on the occasion of each rejection as to the reason why, although no copy of those timesheets with comments was included in the Bundle.[53]This matter forms the basis for the following of the Claimant’s complaints:a. That the Respondent breached his contract of employment by withholding his pay in December 2021 and refusing to sign off his timesheets to allow for the pay to be processed (this is the second alleged breach of contract which the Claimant relies on in relation to Complaint 1, and corresponds to 1.1.1.2 in the List of Issues); andb. That, in communications with the Respondent’s HR team about this matter, the Claimant felt he was ignored in his requests for his pay issues to be resolved, resulting in the Claimant having to wait until January/February 2022 for the issues to be resolved (this is part of the third alleged breach of contract which the Claimant relies on in relation to Complaint 1, and corresponds to part of issue 1.1.1.3 in the List of Issues).[54]The Claimant emailed Ms Baldwin on 17 November 2021, with an email entitled “Timesheet Rejection Issue”, which included: “I have tried to resolve this with my manager Tom Jackson. I worked as per my rota hours 0800-1615 on Sunday 14.11.21 on the old rota. I was asked to do my nightshift which fell on the 14th as well. 15 of 44 I initially refused then offered several suggestions which were not agreeable. I was then given ultimatums and told that I have to work the night shift as it’s a business requirement… I relented and said I would work both shifts so as not to cause problems…”.[55]Ms Baldwin replied 41 minutes later: “Can you forward your time sheets in another way as I cannot open them”.[56]The Claimant says that he replied to this email, but there is no such correspondence in the Bundle nor in the Claimant’s Further Bundle, and Ms Baldwin states that she did not receive a reply from him. In cross-examination the Claimant for the first time said that he spoke to Ms Baldwin around this time to apologise for not being able to send his timesheets to her in any other way because he did not have access to them. This conversation was not referred to in the Claimant’s written witness statement, and the Respondent avers that the Tribunal should not accept this part of the Claimant’s account.[57]Two days later on 19 November 2021, Ms Baldwin was in correspondence with Mr Spicer about the matter.[58]The Claimant emailed Mr Jackson on 22 November 2021, copying Ms Baldwin and the trade union representative, asking: “Could you please update me on whether my timesheet issue is likely to be resolved, as my timesheet has been rejected 3 times now…. I worked the hours so need to be paid”.[59]The Claimant emailed a member of the payroll team on the same date, seeking assistance with getting the payment resolved, and received a response the next day from that member of the payroll team, which included: “I have gone through the 5 timesheets included in your November ’21 salary against the Joint Agreement and found no issues with payments processed.”[60]Ms Baldwin escalated the matter to a more senior member of her team, Ian Thurston, on 24 November 2021, and this prompted Mr Jackson to enquire of the Claimant on the same day about what is missing from his pay. Mr Jackson received no reply from the Claimant. The Incident, 24 November 2021[61]On 24 November 2021, the Claimant was working alongside a public road, when a driver mounted the pavement. The Claimant took evasive action by jumping out of the way, and fell and caused damage to his wrist. This matter is referred to in this judgement as the “Incident”.[62]The Claimant describes the Incident in his witness statement and in his oral evidence to the Tribunal as an “attempted assault”. His witness statement says that “a driver with 3 other passengers, purposely mounted the pavement, drove 16 of 44 straight at me, and then tried to run me over. I managed to dive out the way but was injured in the process.” The Claimant reported the matter to the police.[63]The Incident relates to the Claimant’s complaints in the following ways:a. The Claimant says that the Respondent failed to provide support after multiple requests, via the call centre and escalated to on-call management (the on-call repair manager and the EMS manager, one of whom was Tom Jackson) and was not truthful about the support which was available (this is the first alleged breach of contract which the Claimant relies on in relation to Complaint 1, and corresponds to 1.1.1.1 in the List of Issues); andb. The Claimant says that in his communications with HR and the managers in question (he refers to Mr Jackson’s line manager, who was Mr Spicer) he felt that he was ignored as regards his request for support (this is the other part of the third alleged breach of contract which the Claimant relies on in relation to Complaint 1, and corresponds to part of issue 1.1.1.3 in the List of Issues).
Analysis
[64]At the time, the Respondent had the following information about what happened to the Claimant:a. The information the Claimant gave when he messaged the OCC twice seeking relief support – of which there is no record;b. The information he gave the OCC when he telephoned for relief support – of which there is no record;c. The email the Claimant sent his line manager, Mr Jackson, in the early hours of the following morning: “I was injured earlier when a car mounted pavement on a job, and I hurt myself getting out of way. C Rymer made aware. Been reported to police and have incident number. Got shooting pains up whole of arm and is swollen, also back, neck, knee and shoulder now hurting. Won’t be in tomorrow”; andd. The information the Claimant gave Mr Jackson via WhatsApp message exchange later on 25 November 2021, which Mr Jackson said in oral evidence was consistent with the email he received from the Claimant. Mr Jackson said that he did not understand the Incident to have been an assault, but an accident, from the information he received from the Claimant.[65]The Claimant says that the Respondent maintains logs of messages and calls to the OCC, and that the Respondent has failed to disclose the messages and calls he made to it, which would support his contention that the Respondent failed to provide support to him after the Incident.[66]Whilst the allegation described in paragraph 1.1.1.1 of the List of Issues refers to Mr Jackson as one of the people to whom the Claimant requested the support, 17 of 44 the Claimant accepted in evidence that Mr Jackson was not working that evening, and he did not speak to Mr Jackson. He instead now says that he spoke with Chris Rymer and with Lee King, but he is not sure if he spoke to anyone else.[67]The Claimant says that he had proof of the messages he sent and the calls he made on his work mobile telephone, and that he forwarded that to his personal mobile telephone, but that the latter has since been damaged by water, and while he has “been attempting to get this fixed” at the time of writing his witness statement he had not yet succeeded.[68]The Respondent says in reply:a. It has made a reasonable search, and does not have OCC message and call logs from that date;b. If the Claimant sent those messages and made those calls, he would have had a record of those on his work mobile telephone, which is one of the pieces of Respondent property that the Claimant did not return to the Respondent on or following the termination of his employment;c. The Claimant has failed to identify when the requests were made, who refused them, and what was untruthful about the responses he received. While in oral evidence the Claimant named Mr Rymer and Mr King, he did not name those individuals in the Preliminary Hearings when the List of Issues was discussed, nor in his witness statement, and so the Respondent has not made enquiries of those individuals;d. The Respondent can only provide relief if the resource is available, and while the Claimant has criticised the Respondent for being consciously under-resourced, he does not accept that that could have been the reason why relief was not sent to him before he drove himself home. The Claimant’s contract required him to stay and finish the job, and the Respondent was not contractually obliged to provide relief;e. The Claimant evidently was not so injured that he could not drive himself home, as that is what he did; andf. There is no evidence of any dishonesty on the part of anyone at the Respondent.[69]The email the Claimant sent to Mr Jackson on 25 November 2021 referred to Mr Rymer being aware, and Mr Jackson’s witness statement records him as having asked Mr Rymer for his recollection. Mr Jackson’s statement records that he emailed Mr Rymer to ask him for information regarding the Incident, and while he does not recall how that query was resolved, “I would likely have had a conversation with Chris as it is standard procedure for the standby manager to handover to the daytime manager”.[70]The Tribunal finds: 18 of 44a. The burden of proving the facts on which he relies sits with the Claimant. The Claimant has not proved that the Respondent breached his contract of employment by not sending relief, nor that anyone at the Respondent was untruthful about the support available when he engaged with them. The contractual breach the Claimant alleges in paragraph 1.1.1.1 of the List of Issues is not supported by the evidence, and the Claimant’s account was vague and his responses to relevant questions on the matter evasive.b. Similarly, the breach the Claimant avers in issue 1.1.1.3 relating to the Incident, that in the communications he had with HR and managers he felt that he was ignored as regards his request for support is not evidenced. The Tribunal cannot conclude that this allegation is made out. The Claimant commenced a period of sick leave on 29 November 2021 until the end of his employment on 29 August 2022[71]The Claimant then commenced a period of sick leave on 29 November 2021 due to the injury to his wrist.[72]The Respondent’s sick pay policy in the SGNC Joint Agreement provides that:a. An employee with more than one year’s service is eligible to be paid in full for up to 15 weeks’ sickness absence, followed by a further up to 13 weeks paid at half pay; andb. Employees who have been assaulted while on duty are eligible to be paid full pay for up to 12 months’ sickness absence.[73]The Claimant was paid in full for 15 weeks, beginning on 29 November 2021 and ending on 17 March 2022, after which he was paid half-pay until 16 June 2022, from which date his sick leave was either unpaid or paid at the Statutory Sick Pay rate only (that is a point of dispute between the parties that does not need to be determined as part of this case).[74]The sick pay paid to the Claimant is relevant to four of the issues in the case, namely:a. The Claimant’s contention that there was a delay on the part of the Respondent’s HR department in communicating with him over his requests for full sick pay during his sick leave, and refusing to engage with the Claimant about these issues (issue 1.1.1.4, and the fourth allegation the Claimant makes of the Respondent’s conduct breaching his contract of employment, and is part of Complaint 1);b. The Claimant says that, by halving his pay and failing to engage with him when he requested his sick pay to be reconsidered, the Respondent breached his contract of employment and forced him to take a second job (issue 1.1.1.5, and the fifth breach of contract the Claimant alleges by the Respondent, and forms part of Complaint 1); 19 of 44c. The Claimant says that, by paying him half pay for the period 18 March 2022 to 16 June 2022, and no company sick pay from 17 June 2022 onwards until 29 August 2022 when his employment with the Respondent terminated, the Respondent made unauthorised deductions from his wages, or breached his contract of employment (issue 5.1 and Complaint 4); andd. The Respondent avers, as part of the Counterclaim (Complaint 5), that the Claimant’s claiming for and receiving sick pay from the Respondent in the period 7 March 2022 to 17 June 2022, while he was working for Centrica, was a fundamental breach of the contract of employment between them, and that the Claimant fraudulently claimed sick pay from the Respondent in this period and is liable to repay that as damages for that fundamental breach of contract.[75]These disputes are discussed in more detail below, under the heading “The Claimant commenced new employment with Centrica”. The Rota Matter continued, December 2021/January 2022[76]The Claimant’s line manager changed in December 2021, from Mr Jackson to Mr Shaw.[77]On 19 December 2021 at 21:44 the Claimant emailed Mr Shaw and Ms Baldwin:a. Supplying them with a copy of a Statement of Fitness for Work (Fit Note) from his General Practitioner. That stated that from 29 November 2021 to 7 January 2022 the Claimant was “not fit for work” due to “Wrist injury”;b. Asking for an update from Ms Baldwin on the timesheet rejection matter; andc. Stating that he had been underpaid because of the timesheet rejection matter and had “not heard anything”, and that he had “followed up with emails/calls which have not been responded to”.[78]On 20 December 2021 Ms Baldwin replied. She stated that she had asked him, on 17 November 2021, to send her through his timesheets in a different format, as she could not open them, but she had not yet received them. Ms Baldwin copied Mr Jackson seeking an update on the query with the Claimant’s pay.[79]By way of reply, on 20 December 2021 Mr Jackson forwarded the email he sent the Claimant on 24 November 2021, asking what was missing from his pay, to Mr Spicer, noting that he had had no more contact with the Claimant as he went off sick.[80]Mr Spicer emailed the Claimant on 20 December 2021, and said that he had found what was missing from the Claimant’s pay, and that he would arrange for payment to be made to him as soon as possible. Mr Spicer emailed the Claimant the next day to ask the Claimant to send him a copy of his recent payslip to show 20 of 44 the Claimant’s hourly rate, noting that he would send payment through as soon as that was received from the Claimant.
Conclusions
[81]On 26 December 2021 the Claimant emailed Mr Spicer seeking an explanation as to why the payment had not been made.[82]Mr Spicer replied on 29 December 2021, noting that as he had not received a copy of the Claimant’s payslip with his hourly rate, he could not arrange payment. He apologised, and repeated that “As soon as I get this I will arrange a BaCs payment”.[83]The Claimant replied on the same day, stating that he did not have access to his payslips currently, and requesting that payment be made. Mr Spicer replied to him, copying Ms Baldwin, also on 29 December 2021: “I do not have access to the hourly rate of all individuals within SGN, Your manager at the time (Tom Jackson) declined your timesheet due to too many core hours booked, and confusion of days worked/agreed over the rota transition period… As soon as I found out you were not paid I arranged to [pay you for the hours]… but I need your hourly rate for that and I thought the easiest option would be to ask you.” Mr Spicer asked Ms Baldwin to ask payroll for the Claimant’s hourly rate so the payment could be processed.[84]Ms Baldwin replied two hours later with that information, and the payment was processed the next day, and paid to the Claimant on 7 January 2022.[85]As noted above, the Claimant avers that:a. The Respondent withheld his pay in December 2021 and refused to sign off his timesheets to allow for the pay to be processed; andb. The Respondent’s HR team ignored communications from him about this matter, resulting in the Claimant having to wait until January/February 2022 for the issues to be resolved, and that these matters each breached his contract of employment.[86]It is plain from the evidence described above that:a. The Respondent did not “withhold” pay for the Claimant. Rather, the Claimant knowingly acted against a management instruction by working the day shift on 14 November 2021, and the pay for that shift could not be authorised by Mr Jackson because it breached the Respondent’s rest break requirements. Nonetheless, the payment was ultimately authorised by Mr Spicer when he became aware of it and was provided with the requisite information.b. Neither the Respondent’s HR team nor the Claimant’s managers ignored communications from the Claimant about this matter. Rather, it was the 21 of 44 Claimant who ignored communications from them, and that was the cause of the delay in his receiving the payment.[87]Neither of these matters breached the Claimant’s contract of employment, and nor could he possibly have considered them to do so at the time. These breaches alleged by the Claimant in relation to Complaint 1 (corresponding to issues 1.1.1.2 and part of 1.1.1.3 in the List of Issues) are contradicted by the evidence and do not succeed. The Claimant’s sickness absence continued; the Claimant commenced new employment with Centrica, 7 March 2022[88]The Claimant commenced new employment with Centrica on 7 March 2022, while still employed by the Respondent – this much is not disputed by the Claimant. The Respondent says that it did not learn of this fact until 5 August 2022; the Claimant says that the Respondent was asked by Centrica for a reference concerning him ahead of his commencing employment with them, and so it was aware of his new employment. Whilst he has disclosed no documentation in relation to his new employment or his recruitment into that role, the Claimant has told the Tribunal that he was contracted to work for Centrica from 9 am to 3:30 pm each weekday.[89]In the meantime, the Claimant and the Respondent were engaging about the level of sick pay he was receiving from the Respondent. On 21 March 2022, the Claimant emailed Ms Baldwin, saying that he had received a letter from HR regarding his sick pay being halved. The Claimant said that was incorrect, and he believed he should be paid in full for up to 12 months because he had suffered his wrist injury as a result of an assault while on duty. Ms Baldwin replied the next day:a. Expressing hope that the Claimant is well;b. Asking if they could arrange a visit to the Claimant’s home to: i. Discuss his concerns around pay; ii. Get an update on his health situation; and iii. Give him an update on the workplace;c. Noting that this would be an opportunity for them (her and Mr Spicer) to collect any equipment the Claimant has “to enable us to have it updated”;d. Reminding him of the Employee Assist program; ande. “In the mean time I will refer you to occupational health, the contact number I have for you is your work one, please can you keep this on in readiness to take their call.”[90]On the same day Ms Baldwin made a reference in respect of the Claimant to the Respondent’s occupational health provider. Also on that date, the occupational health provider contacted Ms Baldwin to say that they were having trouble getting 22 of 44 hold of the Claimant, but they had provisionally given him an appointment for 31 March. Ms Baldwin forwarded that email to the Claimant, and asked him to confirm with them that the appointment was suitable.[91]Also on 24 March 2022 the Claimant replied to Ms Baldwin’s email about a home visit. In that email the Claimant:a. Asked Ms Baldwin to confirm why his pay was being halved as soon as possible;b. Said that he would confirm with occupational health a suitable date for an appointment once he understood why that was required;c. Referred to the provision in the contract of employment whereby it states that an employee who has suffered an assault at work would receive full pay for up to 12 months;d. Queried why the Respondent’s equipment needed to be collected; ande. Objected to the fact that someone had attended his property without his permission and attached stickers to the Respondent’s van on his driveway that referred to an SGN recruitment exercise. In that email the Claimant attached a further Fit Note for the period 17 March 2022 to 26 April 2022, stating that he was “not fit for work” due to a “Wrist injury”.[92]The Claimant would not agree to meet with occupational health, and so the appointment provisionally made for him was cancelled.[93]Ms Baldwin emailed the Claimant on 31 March 2022, replying to his queries/complaints as follows:a. His entitlement was to up to 15 weeks’ full pay and then to up to 13 weeks’ half pay;b. Explaining that the Respondent wished for him to see occupational health to “allow us to gain an up to date report on your current health situation and advise us of support and adjustments we can put in place to enable you to return to work, occupational health will also advise the company if you are not fit for work in any capacity”;c. Noting that she had spoken with the Respondent’s Safety, Health and Environment (SHE) team, and that the Council was asked for any CCTV evidence of the incident, but there was none. Informing the Claimant that his absence does not fall within the sick pay provision for an assault at work;d. Informing him that his van was due an MOT; ande. Stating that equivalent recruitment stickers were placed on all vans to generate recruitment.[94]The Claimant replied the following day (1 April 2022) in forthright terms that: 23 of 44a. His injury was sustained while at work, and a car was deliberately aimed at him. The Claimant disputed that he was not entitled to a further period at full pay;b. “I have been available and contactable throughout my absence and have previously stated that the best way to contact me is via email or letter. I have also remained in touch via Whatsapp with Mark Shaw”;c. The reasons given for coming on to his property to attach a recruitment sticker to his van were not acceptable; andd. The issue of his sick pay rate should be escalated.[95]The matter was escalated to Clare Smith, Ms Baldwin’s line manager, on 4 April 2022.[96]Mrs Smith emailed the Claimant on 7 April 2022 with her conclusions on the matter of the Claimant’s sick pay entitlement. Mrs Smith:a. Apologised for the delay in getting back to the Claimant (due to annual leave and seeking legal guidance);b. Noted that, after a review, the Respondent did not consider the circumstances of the Incident to be an “unprovoked assault” within the meaning and spirit of the policy – which is intended to cover deliberate personal violence, not a driver losing control of their vehicle;c. Reiterated the reasons why the Respondent wanted to refer him to occupational health, and asking him to consent to this; andd. Expressing regret that the placement of the recruitment sticker on his van made him feel targeted, and stating that she would arrange for an apology to be made to him.[97]From the Claimant’s initial query of 21 March 2022 to Mrs Smith’s response described above on 7 April 2022 there was a period of 17 days. The Tribunal finds that there was no unreasonable delay on the part of the Respondent’s HR department in communicating with him over his requests for full sick pay during his sick leave, and no refusal to engage with him about these issues. His complaint in issue 1.1.1.4 of the List of Issues is not made out – there was no breach of his contract of employment by the Respondent’s conduct in this regard.[98]The Claimant also avers, in issue 1.1.1.5, that the Respondent halved his sick pay and failed to engage with the Claimant when he requested that that decision be reconsidered. This is the fifth breach of his contract of employment that he alleges on the part of the Respondent. It is evident that, while the Respondent did halve his sick pay, that could not be a breach of his contract of employment, as the Claimant had commenced work with Centrica on 7 March 2022 before that reduction to his sick pay occurred on 18 March 2022. If he was well enough to work for Centrica, he was clearly not “not fit for work”, and so the Respondent cannot be breach of his contract by in fact paying him for further sickness 24 of 44 absence. Moreover, it is abundantly clear that the Respondent did engage with him about whether his sickness absence from 18 March onwards should be on full pay or half pay, and so this alleged breach is not made out either. Significantly, the Claimant was not forced to take a second job by the Respondent’s failure to continue to pay his sick leave in full, as his email of 21 March 2022 indicated that he had recently received a letter from HR about his sick pay reducing to half pay, and he had commenced employment with Centrica on 7 March 2022. There was no breach of his contract of employment by the Respondent in relation to these matters.[99]There was no breach of contract, or unauthorised deduction from the Claimant’s wages, by reason of the Respondent paying the Claimant less than full sick pay from 18 March 2022 onwards. The Claimant was not entitled to be paid any company sick pay by the Respondent from at least 7 March 2022 onwards. Complaint 4 therefore fails.[100]However, as the Respondent contends, the Claimant was clearly in fundamental breach of his employment contract when he commenced work for Centrica whilst still employed by the Respondent. This is for several reasons:a. While it is unclear whether Centrica and the Respondent are competitors so as to offend the quoted section of the Employee Rules above, incorporated into the Claimant’s contract of employment, the Claimant evidently could not both work for the Respondent 38.75 hours per week between the hours of 8am to 8pm six days a week (Monday to Saturday) and work for Centrica Monday to Friday 9 am to 3:30pm. He was in breach of the duty of fidelity he owes the Respondent, and of the express terms of his contract of employment which required that he would be available to work shift patterns between 8am and 8pm six days a week; andb. The Claimant patently was not unfit for work if he was able to work for Centrica. The Respondent and the Claimant agree that Mr Shaw endeavoured to explore options of adjustments to the Claimant’s duties so as to enable him to return to work. Even if that had not occurred, the Claimant was fraudulently claiming company sick pay from the Respondent on the basis that he was unfit for any work, and that was obviously not the case given he was simultaneously working for Centrica. That is obviously a fundamental breach of his contract of employment with the Respondent.[101]Moreover, it is clear to the Tribunal that the Claimant was aware of this fact, for several reasons:a. When giving his evidence, he initially said that he had never received a copy of his contract of employment. He later said that before he commenced employment with Centrica he checked his contract of employment to ensure it was not breached by undertaking that second job; 25 of 44b. It is clear that the Claimant’s refusal to engage with occupational health, or to meet with Ms Baldwin and Mr Shaw at this time, was because he was already undertaking work for another organisation, and he was concerned that occupational health would see his ability to do so, and that attending appointments with the Respondent and with occupational health were incompatible with his commitments to his new employer, Centrica; andc. The Claimant is an intelligent man. He knew what he was doing when he was claiming sick pay from the Respondent (and complaining about its reduction) whilst also working for Centrica. He knew that dual employment with overlapping work hours was fraud against one or both of those organisations. The Tribunal finds it was as against the Respondent, though no evidence has been presented from Centrica itself about its state of knowledge (albeit that Ms Baldwin’s evidence was that, in her correspondence with Centrica, Centrica was unaware that it could be committing the tort of inducing the Claimant to breach his contract of employment with the Respondent). The Claimant has unashamedly attempted to mislead the Tribunal about these matters.[102]Matters came to a head on 4 August 2022, when Ms Baldwin received reports from at least one colleague of the Claimant’s that the Claimant had been seen driving around the locality in a Centrica van. The Respondent emailed Centrica to enquire about this.[103]Centrica replied to the Respondent on 5 August 2022, confirming that the Claimant had started working for it on 7 March 2022, and that it had understood that the Claimant had resigned from the Respondent’s employment. The Claimant resigned from the Respondent’s employment, July/August 2022[104]On 23 August 2022, the Respondent received a hard copy letter from the Claimant resigning from his employment, and that letter was purportedly dated 26 July 2022. The Respondent says that it found this method of communication to be strange, given that previous correspondence with the Claimant had been by email.[105]The actual date of the Claimant’s resignation makes no difference – he was in fundamental breach of his contract of employment with the Respondent from 7 March 2022 onwards.[106]The Claimant’s employment with the Respondent terminated on 29 August 2022. 26 of 44 The Respondent’s treatment of the Claimant’s entitlement to notice pay and pay in lieu of accrued but untaken holiday on the termination of his employment, 31 August 2022[107]The Respondent sent the Claimant a leaver’s letter on 31 August 2022, which:a. Stated that the Claimant’s accrued holiday pay would be offset against the payments made to him by the Respondent since 7 March 2022; andb. Sought the return of various pieces of equipment belonging to the Respondent.[108]The Respondent regarded the Claimant as in fundamental breach of his employment contract with it, and therefore as not entitled to notice pay. In any event, his sick pay from the Respondent had been exhausted by this time, and the Claimant never returned to work for it, so no further payment would have been made in respect of any notice period in any event had his contract continued for that period in.[109]The Claimant says that he did not receive this letter, which was sent by the Respondent by ordinary post to his home address. The Respondent’s property in the Claimant’s possession[110]Early Conciliation between the Claimant and the Respondent began on 24 September 2022 and ended on 5 November 2022.[111]The Claimant in his witness statement and in oral evidence to the Tribunal says that he returned all of the Respondent’s property to its Weymouth Depot, placing those items in a secure locker near the calibration machines in early-tomid September 2022. The Claimant says that no one was present when he did this, and therefore he did not receive a receipt for having returned those items. He says that he did this because he had received no instructions from the Respondent as to how those items should be returned. At one stage in submissions the Claimant also referred to the fact that he notified someone at the Respondent that he had returned that property after he took it to the Weymouth Depot, but when asked about it he seemed to contradict that statement, saying “I don’t think it was ever picked up in my mind to write – I don’t think I ever did that”.[112]The Respondent denies this, saying that the Claimant has retained:a. A Cat4, which it values at £879.49;b. A Gatech, which it values at £2,100;c. A hydrogen bottle for the Gastech, which it values at £252;d. A Gascoseeker MK2, which it values at £1,027;e. A laptop, which it values at £1,107;f. A laptop case, which it values at £95.57; 27 of 44g. A mobile telephone, which it values at £159.54; andh. A mobile telephone case, which it values at £4.82, which amounts, in aggregate, to property worth £5,625.42. The Claimant has not challenged the valuation of those items.[113]The Respondent says that:a. Property that belongs to it is normally the subject of an offboarding process with the individual’s line manager. In this case, Mr Shaw ceased linemanaging the Claimant before the Claimant’s employment terminated, but this was completed by Richard Moody, who recorded, in the offboarding he did in respect of the Claimant on 23 August 2022, without the Claimant being present as he remained on sick leave, that: “The van was brought back by Mark Shaw and Rich Moody. Some tooling was not in the vehicle when checked. The missing items are a Gascoseeker, Gasteck and Cat . The phone has not been unlocked due to the absence of the employee so the gmail account has not been disabled or a voicmail left advising that Jamie no longer works for SGN. The laptop has not had an out of office message for the same reason”;b. It does not know how the Claimant would have accessed the Weymouth Depot in September 2022, as his access pass would have been deactivated on the termination of his employment;c. Mr Shaw does not recall there being secure lockers in the Weymouth Depot. Moreover, he described the process of entering the Weymouth Depot as requiring both a key and an alarm code; andd. All of its equipment is given a serial number, so that the Respondent is aware of who has what, and who they need to contact when that equipment needs to be updated or recalibrated. Even if the Claimant had managed to return the property to the Weymouth Depot, the serial numbers on that equipment would identify it as having been held by the Claimant, and therefore the system would know that he had returned it. The Respondent’s system still records these items as in the Claimant’s possession.[114]The Respondent wrote to the Claimant again on 20 November 2022, seeking the return of its equipment which it said the Claimant had not returned. The Claimant says that he did not receive that letter (again, sent to his home address by post), and that is why he did not respond to it.[115]The Tribunal prefers the evidence of the Respondent. Notably, Mr Shaw’s evidence about the fact that all of its property is identifiable by way of serial numbers was considered critical evidence by the Tribunal. Even if the Claimant had returned the property to its Weymouth Depot and someone else had picked 28 of 44 up that equipment without realising that it was property returned by the Claimant, the serial numbers would have communicated to the Respondent that the Claimant no longer held its property. That has not happened. The Tribunal finds that the Claimant did not return those items of the Respondent’s property that it alleges, and therefore that the Claimant owes the Respondent the sums sought by way of compensation for that retained property. In so finding, the Tribunal has reminded itself that the fact that it has already made a finding that the Claimant was dishonest about one matter (knowingly claiming sick pay from the Respondent whilst undertaking employment for Centrica) does not mean that he was dishonest about this one – but still he is found to have been dishonest in his assertion that he returned the property. The presentation of the Claim, 5 December 2022[116]The Claimant presented his Claim Form to the Tribunal on 5 December 2022. The Claim Form identified three respondents: the Respondent, Southern Gas Networks Plc, and Scotia Gas Networks Ltd. The claim against the latter was rejected by the Tribunal on 18 January 2023 because the Claimant had not complied with the requirements relating to ACAS Early Conciliation in respect of Scotia Gas Networks Ltd. The presentation of the Counterclaim, 15 February 2022[117]When it presented its Response on 15 February 2023, the Respondent raised the Counterclaim. Preliminary Hearings before the Employment Tribunal[118]A Preliminary Hearing for Case Management took place on 12 June 2023 before EJ Rice-Birchall. The written copy of the Orders made at that hearing, dated 13 June 2023:a. Noted that: “By consent, the respondent’s name is amended to SGN Contracting Limited”;b. Noted that the Counterclaim had been made and would now be served on the Claimant, and he would be asked to file a defence to that Counterclaim;c. Set out a list of the complaints brought by the Claimant, and a list of issues between the parties;d. Recorded that the Claimant had indicated that he may be making an application to amend his claim to include complaints of detriment on the ground that he had made a protected disclosure, and set out some information relating to matters to which the Claimant had referred in the hearing; ande. Included an Order that the Claimant provide some further and better particulars by 11 July 2023. 29 of 44 Those Orders noted the sole respondent as being the Respondent.[119]On:a.19 July 2023 the Claimant challenged the failure to include Southern Gas Networks Plc, and Scotia Gas Networks Ltd as respondents in those Orders; andb.28 July 2023 the Claimant provided some of the further and better particulars sought, but not all.[120]A further Preliminary Hearing for Case Management was held by EJ Truscott KC on 7 September 2023, at which the Claim and the Counterclaim were discussed. EJ Truscott KC:a. Noted that the decision as to whether the respondent had been correctly identified was an administrative decision, and his consent to the current employer was recorded in the Orders of EJ Rice-Birchall – and those were matters for appeal and would not be changed by him;b. Allowed the Claimant’s application to amend his claim to include further narrative background;c. Refused the remainder of the Claimant’s application to amend. While EJ Truscott KC’s Orders did not record the content of the Claimant’s application to amend, a copy of that was included in the Bundle for this hearing, and that application included complaints of protected disclosure detriment and health and safety detriment; andd. Ordered that the Counterclaim be served on the Claimant. Service and Response to the Counterclaim[121]The Counterclaim was served on the Claimant on 19 September 2023, and the Claimant was given 28 days to respond to the Counterclaim (i.e., the deadline to do so was on or before 16 October 2023).[122]On 10 October 2023 the Claimant wrote to the Tribunal: “The document regarding the counterclaim is not clear on its intentions or content. The ET3 is also blank. I also request to see a copy of the information given to the Respondents counsel, following the Preliminary hearing in regard to the decisions made by the Judge”.[123]The Respondent had been copied on this 10 October email, and so replied to the Claimant: “I attach a copy of the Respondent’s ET3 and Grounds of Resistance, where the particulars of counterclaim are pleaded. These Grounds been shared with you already because there are copies of this document in the preliminary hearing bundle(s).”[124]The Tribunal replied on 12 October 2023, attaching a copy of EJ Truscott KC’s Orders of 7 September 2023 and a blank ET3 form, noting that: “The ET3 30 of 44 Form is blank and is for you to complete and return to the Tribunal as the Claimant has made a counter claim against you”.[125]On 15 October 2023 the Claimant wrote to the Tribunal saying that was not aware of the contents of the Counterclaim, and seeking an extension of time to respond to it.[126]The Tribunal Clerk who replied to the Claimant on 17 October 2023 had clearly misunderstood the relevant file, and the response included: “it appears the Respondent has not yet returned the Response form to the Tribunal. The deadline for submission was 16 October 2023. It is possible the form has been received, but not yet actioned. If received, you will be sent a copy of the Response once it has been actioned”.[127]The Respondent sought to clarify the position by an email of the same date as the Tribunal’s, stating that: “In reference to the Claimant’s email of 15 October, we’ve sent a copy of the Particulars of Counterclaim (which were contained in the Respondent’s ET3 and Grounds of Resistance) to the Claimant. We attach a copy of that correspondence.” The original listing of this Final Hearing[128]The Claimant wrote to the Tribunal on 31 January 2024, noting that he had been unwell, suffered a bereavement, and a close family member had suffered a heart attack, and requesting a postponement of the Final Hearing of this matter which had been listed for 12 to 16 February 2024.[129]The matter came before EJ Hart on 12 February 2024, who postponed the final hearing due to the Claimant’s ill health, noting that any application for costs due to that late postponement application by the Claimant was to be addressed at the conclusion of the final hearing. EJ Hart relisted the final hearing for 10 to 14 March 2025. The immediate run-up to this hearing[130]On 18 February 2025 the Claimant requested a further Preliminary Hearing to:a. Deal with ongoing issues of case management;b. Deal with an application to relocate the venue for the final hearing to an alternative one nearer to his home in Dorset;c. Deal with the Claimant’s application to strike-out the Respondent’s response and the Counterclaim; andd. Complaints he makes regarding the conduct of the Respondent’s solicitors.[131]The following day the Respondent objected to that request:a. Noting that it was unaware of any ongoing issues of case management; 31 of 44b. Observing that while the Claimant had previously made an application for a change of venue, he had withdrawn that application;c. Denying that there were any grounds to strike-out the Respondent’s response and Counterclaim; andd. Disputing the Claimant’s complaints about the conduct of its representatives. Law Strike-out 14. Rule 38 of the ET Rules provides: “(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds-(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).” 15. The effect of a strike-out is to terminate the claim or the part of the claim that is the subject of the order. It is a draconian jurisdiction, and the relevant case authorities underlie its exceptional nature. 16. The application here is made under sub-categories (a), (b), (c) and (e) of Rule 38(1) of the ET Rules. There is some overlap between these categories. 32 of 44 (a) No reasonable prospect of success 17. In relation to the argument that the Respondent’s Response and the Counterclaim have “no reasonable prospect of success”, plainly, on the wording of the Rule, the threshold for the Claimant to meet is a high one. 18. The Court of Appeal in A v B [2010] EWCA Civ 1378 equated this test with the applicant needing to show that the prospect of success is no more than “fanciful”. Because the applicant in that case could not meet that threshold, the Court considered that the application failed. 19. The cases of Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755 and Cox v Adecco Group UK & Ireland [2021] ICR 1307 indicate that it would be wrong to make a strike-out order where there is a dispute on the facts that needs to be determined at trial. (b) The Respondent’s conduct of proceedings has been scandalous, unreasonable or vexatious 20. The relevant authority for this ground for strike-out is James v Blockbuster [2006] EWCA Civ 684, where Lord Justice Sedley observed that the two conditions for the Tribunal’s power to strike-out for the manner in which a party has been conducting its side of the proceedings are: “either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response” (my emphasis). 21. The key cases on the second limb, whether strike-out is a proportionate response, include the decisions of the Court of Appeal in Arrow Nominees v Blackledge [2000] 2 BCLC 167 and the decision of the EAT in Weir Valves v Armitage [2004] ICR 371. Both emphasise that, even where the jurisdiction to strike-out is engaged by one party’s non-compliance with court orders, strike-out is not a punishment, but is rather a tool to be exercised with caution in furtherance of justice – to secure the fair trial of the action in accordance with the applicable rules. 22. In the case of Armitage (Blackledge was not an employment law case), Judge Richardson centred the question of what is a proportionate response on the overriding objective, set out in Rule 3 of the ET Rules: “The guiding consideration is the overriding objective. This requires justice to be done between the parties. The court should consider all the circumstances. It should consider the magnitude of the default, whether the default is the responsibility of the solicitor or the party, what disruption, unfairness or prejudice has been caused and, still, whether a fair hearing is still possible. It 33 of 44 should consider whether striking out or some lesser remedy would be an appropriate response to the disobedience.” (c) Non-compliance with an order of the Tribunal 23. As for strike-out on ground (c) above, the key consideration here is the overriding objective, i.e., whether strike-out would further or hinder the Tribunal’s objective to deal with cases fairly and justly, and whether strike-out is a proportionate response. 24. One of the key case authorities on the subject is James v Blockbuster Entertainment Ltd [2006] EWCA Civ 684, where it was noted that: “This power… is a Draconic power, not to be readily exercised. It comes into being if, as in the judgment of the tribunal had happened here, a party has been conducting its side of the proceedings unreasonably. The two cardinal conditions for its exercise are either that the unreasonable conduct has taken the form of deliberate and persistent disregard of required procedural steps, or that it has made a fair trial impossible. If these conditions are fulfilled, it becomes necessary to consider whether, even so, striking out is a proportionate response.” (d) Not actively pursued
Law
[132]An employment tribunal can strike out a claim, response, or part of a claim or response, where:a. there has been delay that is intentional or contumelious (disrespectful or abusive to the court); orb. there has been inordinate and inexcusable delay, which gives rise to a substantial risk that a fair hearing is impossible, or which is likely to cause serious prejudice to the other party (Evans v Commissioner of Police of the Metropolis [1993] ICR 151). (e) Whether it is possible to have a fair hearing[133]The reported decisions on this basis for strike-out generally concern cases which could not be progressed because of the claimant’s ill health where there was no prognosis about when they would be well enough for the case to be pursued. The central applicable considerations are the balance of prejudice to the parties in the matter continuing or being struck-out. Employer contract claims as they relate to statutory sick pay[134]The jurisdiction of the Employment Tribunal is governed by section 3 of the Employment Tribunals Act 1996. That Act, together with the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 (the Order) provides that, in certain circumstances, an Employment Tribunal may determine a claim brought by a former employer against its former 34 of 44 employee for claims arising on the termination of the employee’s employment. One pre-condition to an employer bringing such a claim is that the employee has brought a breach of contract claim against it in the Employment Tribunal.[135]The Social Security Contributions (Transfer of Functions, etc) Act 1999 provides, in section 8(1)(f), that the Commissioners of Inland Revenue have the exclusive jurisdiction to determine entitlement to statutory sick pay. This excludes the jurisdiction of the Employment Tribunal to determine such disputes, even where they arise under the guise of the Tribunal’s wide powers to adjudicate matters such as an unauthorised deductions from wages, or breach of contract. Those general powers of the Tribunal are to be read and understood in light of the specific (and exclusive) power of the Commissioners of Inland Revenue to determine disputes pertaining to statutory sick pay (Taylor Gordon & Co Ltd (t/a Plan Personnel) v Timmons EAT/0159/03/RN). Health and Safety at Work etc Act 1974[136]Section 9 of the Health and Safety at Work etc Act 1974 provides: “No employer shall levy or permit to be levied on any employee of his any charge in respect of anything done or provided in pursuance of any specific requirement of the relevant statutory provisions.” Constructive unfair dismissal[137]The right not to be unfairly dismissed is set out in section 94 of the 1996 Act. For these purposes, an employee is dismissed by their employer if: “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct” (section 95(1)(c) of the 1996 Act).[138]This treatment of the employee’s resignation as “constructive dismissal” pre-dates the 1996 Act, and Lord Denning MR in the Court of Appeal decision in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 described the nature of the contractual breach which entitles the employee to accept that breach and treat the employer’s conduct as dismissing them: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”[139]Therefore there are three elements that an employee needs to prove to demonstrate that they have been constructively dismissed: 35 of 44a. A fundamental breach of the contract of employment between them on the part of the employer;b. A causal link between the employee’s resignation and that employer breach; andc. Evidence of the employee accepting that breach before any affirmation of the contract. Fundamental breach[140]An employer may, in the words of Lord Denning MR in Western Excavating, “[show] that [they] no longer [intend] to be bound by one or more of the essential terms of the contract” through a course of conduct, which may cumulatively amount to a fundamental breach of contract. This is so even if the ‘last straw’ incident does not, by itself, amount to a breach of contract (Lewis v Motorworld Garages Ltd [1986] ICR 157), although that ‘last straw’ must contribute to the course of conduct relied upon. A blameless act by the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his or her trust and confidence in the employer (Omilaju v Waltham Forest London Borough Council [2005] ICR 481).[141]The test of whether the term of the contract has been breached is an objective one. There will be no breach simply because the employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held (Omilaju).[142]The term breached may be an express term of the contract, or an implied one. In the case of the implied term of trust and confidence: “A finding that there has been conduct which amounts to a breach of the implied term of trust and confidence will mean inevitably that there has been a fundamental or repudiatory breach going necessarily to the root of the contract, and entitling the employee to resign and claim constructive dismissal” (Morrow v Safeway Stores plc [2002] IRLR 9).[143]Where there has been a ‘course of conduct’ and the employee has continued to work, the employee may still rely on that course of conduct where it is continuing, despite the fact that the employee has continued to work under the contract, seemingly affirming it in spite of the employer’s breaches – the effect of the ‘last straw’ is to revive the employee’s right to resign (Kaur). Failure to pay compensation for annual leave on termination of employment[144]Regulation 30(5) of the WT Regulations provides that: “Where on a complaint under paragraph (1)(b) an employment tribunal finds that an employer has failed to pay a worker in accordance with regulation 14(2) or 16(1), it shall order the employer to pay to the worker the amounts which it finds to be due to him.” 36 of 44 Wrongful dismissal[145]An employee, by dint of their contract of employment with their employer, is entitled to be given a period of notice before that contract is terminated, being either the notice period prescribed by their contract of employment or statutory minimum notice (whichever is longer). Where an employer dismisses an employee without notice or payment in lieu of notice in breach of that contract, the employee has been wrongfully dismissed and is entitled to seek damages equal to the pay and value of benefits they would have received had their employer complied with the terms of the contract. Unauthorised deductions from wages[146]Section 13 of the 1996 Act provides: “(1) An employer shall not make a deduction from wages of a worker employed by him unless—a. the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract; orb. the worker has previously signified in writing his agreement or consent to the making of the deduction… (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion” (emphasis added).[147]Section 27 of the 1996 Act defines wages as “any sums payable to the worker in connection with his employment”, and that includes, in subsection (a), “any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise”.[148]The words “properly payable” in section 13(3) mean there must be some legal entitlement to the sum in question (New Century Cleaning Co Ltd v Church [2000] IRLR 27).[149]A claim of unauthorised deductions is not the same as a claim for breach of contract or for misrepresentation (where damages may be awarded if the claim is successful) - rather it is a statutory claim based on an entitlement to payment which has not been made (or not made in full). This will involve a factual determination of whether the claimant had a legal entitlement to the payment in question (Steel v Haringey LBC EAT 0394/11). 37 of 44 Application to the claims here Complaint 1: That the Claimant was constructively unfairly dismissed by the Respondent[150]The Claimant avers that there were a number of ways in which the Respondent breached the contract of employment between them (set out in issues 1.1.1.1 to 1.1.1.5 of the List of Issues), and the Tribunal has found that none of those breaches occurred. That is an objective matter, and not one that depends on the Claimant’s interpretation (Omilaju). The Tribunal does not need, therefore, to consider whether any of those breaches, either individually or collectively, were fundamental breaches of the Claimant’s contract of employment. Complaint 1 fails. Complaint 2: That the Respondent owes the Claimant compensation for accrued but untaken holiday on the termination of his employment[151]The parties agree that upon the termination of his employment, the Claimant had accrued but not taken all of the annual leave to which he was entitled pursuant to Regulations 13 and 13A of the 1998 Regulations. This means that the Claimant should have been paid compensation in lieu of that accrued but untaken leave, pursuant to Regulation 14, on the termination of his employment. The value of that compensation is, on the Respondent’s calculation (a higher sum than as per the Claimant’s), £3,452.71 gross.[152]While that would, ordinarily, mean that the Tribunal would make an Order for the Respondent to pay the Claimant the amount that is due to him (regulation 30(5)), the Respondent’s Counterclaim succeeds, and the terms of the Claimant’s contract of employment (incorporating as it does provisions from the SGNC Joint Agreement) entitles the Respondent to deduct from remuneration due to the Claimant any sums due to it, including any overpayments (pursuant to provision D.2.g of the SGNC Joint Agreement). The value of the Counterclaim exceeds the value of the compensation due to the Claimant by way of accrued but untaken holiday (as set out below).[153]Complaint 2 does not succeed. Complaint 3: That the Claimant was wrongfully dismissed[154]The Claimant’s complaint that he was wrongfully dismissed and is owed notice pay is misconceived. The Claimant acted in fundamental breach of the employment contract between him and the Respondent when he:a. Commenced employment with Centrica which obliged him to work hours that were hours when he was contractually obliged to be available for work with the Respondent; and 38 of 44b. Claimed sick pay, stating that he was unfit for work, while he was working for Centrica.[155]That fundamental breach of contract by the Claimant entitled the Respondent, when it learned of that breach, to accept it and treat the contract as terminated. No further sums were due under the contract from that point in time.[156]The Claimant’s complaint that he was wrongfully dismissed (Complaint 3) fails. Complaint 4: That the Respondent made unauthorised deductions from the wages owed to the Claimant, or breached his contract of employment in respect of the sums paid to him, in respect of the period 18 March to 29 August 2022 (from the date when the Claimant began to be paid half pay until the date his employment terminated)[157]As noted above, the Claimant was not entitled to any sick pay from the Respondent from at least 7 March 2022 (possibly earlier, if he was fit for work at an earlier point in time). These were not sums that were “properly payable” by the Respondent to the Claimant, and so the complaint of unauthorised deductions from his wages in respect of them cannot succeed (section 13(3) of the 1996 Act, and the case of New Century Cleaning).[158]Nor can this complaint succeed if framed as one of breach of contract – the Respondent was not in breach of contract by failing to pay the Claimant full sick pay. In fact, the Claimant was not entitled to any sick pay whatsoever from at least 7 March 2022 (and potentially from an earlier date). The Claimant committed fraud when he claimed sick pay from the Respondent while undertaking work for Centrica.[159]His complaint – Complaint 4 - of unauthorised deductions from his wages, or breach of contract, does not succeed and is dismissed. Complaint 5: That the Claimant owes the Respondent £2,408.05 in respect of sick pay paid to him to which he was not entitled (after setting off sum the Respondent owed him in respect of accrued but untaken annual leave on the termination of his employment)[160]The Tribunal has already found that, from 7 March 2022, any sums paid to the Claimant by way of company sick pay were claimed fraudulently by the Claimant. This is because he was simultaneously telling the Respondent that he was unfit for any work whilst undertaking work (and paid work) for Centrica.[161]The Tribunal cannot determine that the statutory sick pay paid to the Claimant in this period was not due to him, because exclusive jurisdiction to determine entitlement to statutory sick pay resides with the Commissioners of the 39 of 44 Inland Revenue (pursuant to section 8(1)(f) of the Social Security Contributions (Transfer of Functions, etc) Act 1999, as interpreted in Timmons).[162]The unchallenged information provided by the Respondent is that it paid the Claimant £4,461.98 by way of company sick pay in the period 7 March to 29 August 2022. Setting off the sum the Respondent owed the Claimant by way of compensation for accrued but untaken holiday (£3,452.70), the Claimant owes the Respondent £1,009.28 by way of damages for fraudulently claimed company sick pay. Complaint 6: That the Claimant failed to return property belonging to the Respondent to it on the termination of his employment, valued at £5,625.42[163]As noted in the Facts section above, the Tribunal finds that the Claimant failed to return this property to the Respondent, and therefore that the Claimant owes the Respondent compensation in respect of that property.[164]While the Claimant has pointed to section 9 of the Health and Safety at Work etc Act 1974, which he says prevents an employer charging an employee for the provision of PPE, the Tribunal considers that that provision only prevents an employer from charging an employee of his for PPE. The Claimant ceased to be the Respondent’s employee, the equipment was no longer needed by him for the performance of his employment duties, and the equipment should have been returned. As the Claimant said, all this equipment was provided to him to protect him from harm in the conduct of his duties, but the Claimant no longer requires the equipment for that reason.[165]As the equipment was not returned, the Claimant is Ordered to pay the Respondent the sum of £5,625.42 in respect of that equipment. Conclusions[166]Each of the Claimant’s complaints fails and is dismissed.[167]The Counterclaim succeeds, and the Claimant is ordered to pay the following sums to the Respondent:a.£1,009.28 in respect of company sick pay fraudulently claimed by and paid to him; andb.£5,625.42 in respect of Respondent property which the Claimant did not return on the termination of his employment, so £6,634.70 in aggregate. 40 of 44 EMPLOYMENT TRIBUNALS Considered at: London South On: 6 June 2025 By: Employment Judge Ramsden In the matter of Mr J Atkinson v SGN Contracting Limited Consideration of judgments reached on: 22 April 2025 (liability) and 3 May 2025 (costs)
LAW
[1]The Claimant’s application for reconsideration of the liability judgment dismissing his claim with case number 2304651/2022 and upholding the Respondent’s counterclaim with case number 2305010/2023 given in this matter on 22 April 2025 is refused. The Claimant has no reasonable prospect of the judgment being varied or revoked. The decision in that judgment is confirmed.[2]In that same application the Claimant also applied for reconsideration of the Tribunal’s judgment on the Respondent’s application for costs given in this matter on 3 May 2025. The Claimant has no reasonable prospect of the judgment being varied or revoked. The decision in that judgment is confirmed. BACKGROUND[3]Following a period of ACAS Early Conciliation which began on 24 September and ended on 5 November, both of 2022, the Claimant presented a claim to the Employment Tribunal on 5 December 2022 (the Claim), which was given the case number 2304651/2022 by the Tribunal.[4]In the Claim the Claimant said that: a) He was constructively unfairly dismissed by the Respondent; b) He was owed pay in lieu of the holiday that he had accrued but not taken on the termination of his employment; c) He was wrongfully dismissed and was owed notice pay; and 1 of 15 d) The Respondent made unauthorised deductions from his wages, or alternatively breached his contract of employment by the amount he was paid, in respect of a period of sick leave when the Claimant was not paid in full when he says he should have been.[5]In its Response, presented on 15 February 2023, the Respondent both resisted these complaints and presented a counterclaim, seeking: a) Repayment of the sick pay paid to the Claimant by it in the period 7 March 2022 to 29 August 2022. The Respondent says that it offset some of that sick pay against the payment in lieu of accrued but untaken holiday that the Claimant would otherwise be entitled to, so it sought repayment of the balance of £2,746.97; and b) The value of its property which it says the Claimant retained, amounting to £5,625.42 (the Counterclaim). This was given the case number 2305010/2023 by the Tribunal.[6]The Counterclaim was served on the Claimant by the Tribunal on 19 September 2023. The Claimant was informed that if he wished to contest it he would need to send a response within the next 28 days (i.e., on or before 16 October 2023). The Claimant did not send a response to the Counterclaim.[7]Judgment was given on the Claim and the Counterclaim orally on 2 April 2025. The Claimant requested written reasons, and those were completed on 22 April 2025 and promulgated by the Tribunal on 29 April 2025.[8]The Respondent made an application for costs on 2 April 2025. The Tribunal Ordered the Claimant to send a statement of means, which he did on 13 April 2025. The Tribunal’s decision on the Respondent’s costs application was made on 3 May 2025, and sent to the parties on 8 May 2025. APPLICATION[9]On 9 May 2025 the Claimant applied to revoke the costs judgment in a five page letter (the First Application).[10]On 12 May 2025 the Claimant applied for an extension of time to present an application for reconsideration, citing: a) An unforeseen domestic disruption; and b) Ongoing mental and physical health challenges.[11]The Claimant applied, under Rule 69 of the Employment Tribunal Procedure Rules 2024 (the ET Rules), for reconsideration of the decision on liability promulgated on 29 April 2025, and the decision on costs was sent to the parties 2 of 15 on 8 May 2025 in a 66-page document with a four page cover letter (the Second Application). The Claimant’s Second Application was made on 20 May 2025.[12]The Claimant’s reasons for applying for reconsideration of the liability decision are that: a) Ground 1: The Tribunal reached the wrong decision on the evidence; b) Ground 2: The Tribunal failed to engage with the statutory protections afforded to the Claimant by sections 43B, 44, 98, 100 and 103A each of the Employment Rights Act 1996 (the 1996 Act); c) Ground 3: The Tribunal failed to give adequate or Meek-complaint reasons; d) Ground 4: There was no legal basis for the success of the Counterclaim given, the Claimant says, section 9 of the Health and Safety at Work Act 1974 prohibits an employer from charging an employee for personal protective equipment or safety equipment (PPE); e) Ground 5: The Tribunal failed to allow proper agreement of a List of Issues, instead adopting the Respondent’s framing, which resulted in whistleblowing, rota safety breaches and occupational health failures being sidelined; f) Ground 6: The Claimant’s expert background in gas safety, health and safety and regulatory practice was disregarded by the Tribunal; g) Ground 7: The Tribunal failed to take account of the impact that the Respondent’s placement of a job advert on the side of its van on the Claimant’s driveway had on the breakdown of the relationship between him and the Respondent; h) Ground 8: The Tribunal inferred that the Claimant had been dishonest in relation to the Fit Notes he submitted to the Respondent, but Fit Notes are known for being generally vague and lacking in clarity; i) Ground 9: The Respondent acknowledged that, at law, it is possible for an employee to be off sick from work with one employer and to lawfully undertake work for another, and this is what the Claimant did. It was inappropriate for the Tribunal to conclude that that breached the Claimant’s contract of employment with the Respondent; j) Ground 10: The Tribunal failed to consider the cumulative nature of the Respondent’s breaches of the Claimant’s contract of employment; k) Ground 11: The Claimant’s request for the hearing venue to be moved was ignored or dismissed without explanation; l) Ground 12: The Tribunal repeatedly lost, left off the file, or left unanswered correspondence from the Claimant, whereas all correspondence sent by 3 of 15 the Respondent received immediate replies. This disparity gives an appearance of procedural bias; m) Ground 13: The Tribunal failed to make adjustments sought by the Claimant to the conduct of the hearing; n) Ground 14: The Claimant requested a preliminary hearing to deal with procedural issues including a strike-out application, a possible unless order and other directions to cure procedural defects; o) Ground 15: The Respondent was permitted to serve key documents late in the preliminary hearings; and p) Ground 16: The Tribunal misapplied the burden of proof to the Claimant’s constructive unfair dismissal complaint. Once the Claimant showed that his resignation was in response to a potential breach by the Respondent, it is for the Respondent to show a fair reason and that it acted reasonably in all the circumstances.[13]The Claimant’s reasons for applying for reconsideration of the costs decision are that: In the First Application: a) Ground (A): The costs judgment is based on a flawed statement that no evidence of means was provided; b) Ground (B): The costs application was considered by the Tribunal immediately after judgment was given, with no opportunity for further reply or hearing; c) Ground (C): The Tribunal did not consider repayment terms, despite that being raised; and d) Ground (D): The costs in the Counterclaim are inflated; In the Second Application: e) Ground (I): The Tribunal made no findings of vexatious or unreasonable conduct on the part of the Claimant; f) Ground (II): The Tribunal made no analysis as to the Claimant’s means; g) Ground (III): There was a public interest basis for the claims; h) Ground (IV): The Tribunal relied on the Claimant’s resistance of the Counterclaim as a basis for imposing costs when there was no basis for the part of the Counterclaim that related to the return of PPE; i) Ground (V): The costs award was disproportionate to the value of the items in question; j) Ground (VI): The costs decision was procedurally flawed; and 4 of 15 k) Ground (VII): The Claimant was not afforded a fair opportunity to respond to the costs application.[14]The Tribunal has not received any representations on these applications from the Respondent, and nor has the Tribunal requested any. LAW A judgment must explain why a party has won or lost[15]Rule 60(7) provides that the reasons contained in a (written or oral) judgment must: “(a) identify the issues which the Tribunal has determined, (b) state the findings of fact made in relation to those issues, (c) concisely identify the relevant law, and state how that law has been applied to those findings in order to decide the issues, and (d) where the judgment includes a financial award, identify by means of a table or otherwise, how the amount to be paid has been calculated”.[16]This rule, or its then-equivalent, was considered by the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250. The Court held that a tribunal decision: “must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable an appellate court to see whether any question of law arises.” Reconsideration[17]The Rules on reconsideration are set out in Rules 68 to 71 of the ET Rules.[18]Rule 68 provides as follows: “Principles(1) The 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.(2) A judgment on reconsideration may be confirmed, varied or revoked.(3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion.” 5 of 15[19]The requirement that tribunals should only reconsider decisions if it is “necessary in the interests of justice to do so” has been considered by a number of cases. One recent example is the decision of the EAT in Ebury Partners UK Ltd v Acton Davies [2023] IRLR 486, where Shanks J held: “The employment tribunal can only reconsider a decision if it is necessary to do so ‘in the interests of justice’... A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the tribunal after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT”.[20]Similarly Simler P observed in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 that: “Where, as here, a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[21]Rule 69 sets out the conditions on which a party may make an application for reconsideration: “Application Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of-(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately.”[22]Rule 70 deals with the process the tribunal must follow regarding an application made under Rule 69: “Process for reconsideration(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). 6 of 15(2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked… the application must be refused and the Tribunal must inform the parties of the refusal.(3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application…”.[23]On time limits, Rule 5 includes the following: “Time ... (3) Where any act is required to be, or may be, done within a certain number of days of or from an event, the date of that event must not be included in the calculation. (For example, a response must be received within 28 days of the date on which the respondent was sent a copy of the claim: if the copy of the claim was sent on 1st October the latest date for receipt of the response by the Tribunal is 29th October). … (7) The Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in these Rules or in any decision, whether or not (in the case of an extension) it has expired.” JURISDICTION TO RECONSIDER THE JUDGMENTS REACHED The timing of the applications[24]The First Application, of 9 May 2025, was made within the timeframe specified in Rule 69.[25]The Second Application, of 20 May 2025, was made outside the timeframe specified in Rule 69 in respect of the liability judgment, and within the timeframe specified in Rule 69 in respect of the costs judgment.[26]The Claimant’s application of 12 May 2025 for an extension of time made under Rule 5(7) to present an application for reconsideration in respect of the liability judgment is to be assessed in light of the interests of justice. The Claimant cites two bases on which his says the extension should be granted: a domestic disruption, and ongoing physical and mental health challenges. It is not in the interests of justice to extend time in relation to the latter, as the Claimant has 7 of 15 provided no evidence of any health challenges he is facing. As for the former, there can be little more evidence provided by the Claimant than his say-so that he has experienced a domestic disruption, and on that basis the Tribunal considers that it is in the interests of justice that the extension be granted. “Necessary in the interests of justice”[27]Rule 68 also refers to the power of the Tribunal to reconsider being conditional on it being “necessary in the interests to do so”. This is effectively an examination of the merits of the bases for the applications, and so that is considered in the Reasons section below.[28]Each of the Claimant’s grounds for seeking reconsideration of the liability judgment is considered in turn below. Ground 1: The Tribunal reached the wrong decision on the evidence[29]The Claimant has presented no new evidence. His application on this ground is seeking to relitigate the case that has been heard and determined. The arguments made by the Claimant in the hearings were properly ventilated. It is not in the interests of justice to give the Claimant a “second bite at the cherry” and revisit those decisions (Ebury, Liddington). Ground 2: The Tribunal failed to engage with the statutory protections afforded to the Claimant by sections 43B, 44, 98, 100 and 103A of the 1996 Act[30]The reason the Tribunal did not engage with the statutory protections in sections 43B, 44, 100 and 103A of the 1996 Act is that complaints under those provisions did not form part of the Claimant’s claim. The Claimant had applied to amend the Claim to include complaints of those kinds, but that application was rejected by EJ Truscott KC at a Preliminary Hearing on 7 September 2023, and it was not open to me to revisit that decision. It is also noteworthy that the Claimant did not appeal EJ Truscott KC’s decision.[31]The Tribunal did engage with the statutory protections afforded to the Claimant by section 94 (and so 98) of the 1996 Act. That was the Claimant’s complaint that he was constructively unfairly dismissed, which formed a significant part of the liability judgment reached. Ground 3: The Tribunal failed to give adequate or Meek-complaint reasons[32]The Claimant has failed to say why the Tribunal did not give Meek-compliant reasons. The liability judgment outlines the issues, the findings of fact, the relevant law, how the law has been applied, and how the financial award for the Counterclaim has been calculated. 8 of 15 Ground 4: There was no legal basis for the success of the Counterclaim given the Health and Safety at Work Act 1974 prohibits an employer from charging an employee for personal protective equipment or safety equipment[33]This ground is an attempt to relitigate a point that was raised, considered and determined in the liability judgment – see paragraphs 20.d.iv and 164. This is not a basis on which it is appropriate for a judgment to be reconsidered (Ebury and Liddington). Ground 5: The Tribunal failed to allow proper agreement of a List of Issues, instead adopting the Respondent’s framing, which resulted in whistleblowing, rota safety breaches and occupational health failures being sidelined[34]A list of issues is a case management tool. The scope of the Claimant’s claim was set by his Claim Form and by subsequent permission granted to him by EJ Truscott KC to amend his claim, and whilst the Claimant had applied for it, that permission did not extend to complaints pertaining to whistleblowing or health and safety matters. As noted in Ground 1 above, it was not open to the Tribunal at the Final Hearing to reopen EJ Truscott’s decision to refuse the Claimant’s application to amend his claim to include those matters. Ground 6: The Claimant’s expert background in gas safety, health and safety and regulatory practice was disregarded by the Tribunal[35]The Claimant’s expertise in matters of gas safety, health and safety and regulatory practice was not considered, and was not relevant to the complaints to be determined. Ground 7: The Tribunal failed to take account of the impact that the Respondent’s placement of a job advert on the side of its van on the Claimant’s driveway had on the breakdown of the relationship between him and the Respondent[36]The Claimant says that the Tribunal failed to give sufficient weight to the impact that the placement by the Respondent of a job advert on its van, when that van was sitting on the Claimant’s during his sickness absence, had on the relationship between the Respondent and the Claimant. The Respondent acknowledged that this caused upset, and at the time said it would apologise, but that apology was never forthcoming.[37]While that is a matter to be regretted, neither the van incident nor the failure of the Respondent to apologise after saying it would was pled by the Claimant as a breach of contract, or a matter that, together with the other matters he relied on, collectively amounted to a breach of contract. 9 of 15 Ground 8: The Tribunal inferred that the Claimant had been dishonest in relation to the Fit Notes he submitted to the Respondent, but Fit Notes are known for being generally vague and lacking in clarity[38]The Tribunal did more than infer that the Claimant was dishonest when submitting fit notes to the Respondent while working for Centrica – it found that he was in fact dishonest. The Fit Notes he submitted stated clearly that he was unfit for work – that assertion was evidently incorrect when the Claimant was able to work for Centrica at the same time.[39]The Tribunal does not agree with the Claimant’s contention that Fit Notes are generally vague and lacking in clarity. This aspect of Fit Notes (the aspect relied on by the Tribunal in its liability judgment) is very clear – it involves the person signing the Fit Note choosing between one of two optional boxes to advise the person to whom the certificate is presented that the Patient either: a) Is “not fit for work”; or b) “may be fit for work taking account of the following advice”.[40]The certificates supplied by the Claimant to the Respondent while he was working for Centrica had the first option selected. They clearly stated that the Claimant was “not fit for work”, which was untrue. Ground 9: It was inappropriate for the Tribunal to conclude that that breached the Claimant’s contract of employment with the Respondent by working for Centrica given that the Respondent acknowledged that, at law, it is possible for an employee to be off sick from work with one employer and to lawfully undertake work for another[41]The Tribunal found that it was the Claimant’s actions in: a) In entering into a contract with Centrica that committed him to working for Centrica in hours of work when he was contractually bound to be available to work for the Respondent; and b) Fraudulently telling the Respondent that he was unfit for work at a time when he was working for someone else, that fundamentally breach his contract of employment with the Respondent (see paragraph 100 of the liability judgment). The fact that it may be possible for ‘a person’ to lawfully work for another employer while on sick leave from their first employer is not relevant. Here, the Claimant breached a fundamental term of his contract of employment with the Respondent by not being available to work in the hours he was obliged to, and by fraudulently claimed sick pay from it by telling it that he was unfit for work when he was fit for some work. Ground 10: The Tribunal failed to consider the cumulative nature of the Respondent’s breaches of the Claimant’s contract of employment[42]The Tribunal found that none of the averred breaches occurred, so there was no cumulative effect to consider (see paragraph 150 of the liability judgment). 10 of 15 Ground 11: The Claimant’s request for the hearing venue to be moved was ignored or dismissed without explanation[43]The Claimant had requested, ahead of the Final Hearing, that the tribunal venue be changed, but he withdrew that request on 17 February 2025, and so the Tribunal at the Final Hearing did not engage with that withdrawn request. Ground 12: The Tribunal repeatedly lost, left off the file, or left unanswered correspondence from the Claimant, whereas all correspondence sent by the Respondent received immediate replies. This disparity gives an appearance of procedural bias[44]It is a matter of regret, but a feature of a significant caseload, that the London South Employment Tribunal can take some time to reply to correspondence from parties. Correspondence received by the Tribunal is triaged by HMCTS (not employment judges) to identify the most urgent matters so that they get the first attention of the duty employment judges. The levels of correspondence from the parties to cases assigned to this region varies at different times. The system is not always perfect, nor as efficient as would be desired, and it is unfortunate that this has left the Claimant with the impression that his correspondence was not treated with the same priority as the Respondent’s. However, the Tribunal notes that there was also correspondence from the Respondent that was not responded to in a timely manner by the Tribunal.[45]The Employment Judge is the only person who took decisions on the merits of the Claim and Counterclaim. Those members of HMCTS who took decisions about the relative priorities of correspondence to the Tribunal were not involved in decisions on the merits of the Claim and Counterclaim.[46]If the Claimant’s concern is that there were procedural points made by him that were not answered, that is not the Employment Judge’s understanding. Significant time was given to dealing with preliminary matters at the outset of the hearing, and both parties indicated that all such matters had been dealt with before the Claimant, the first witness the Tribunal heard from, was called to give evidence. His evidence began at 15:42 on the first day of the hearing, after nearly a whole day spent considering and dealing with preliminary matters. The Employment Judge understood that there were no unresolved preliminary matters at that time. Ground 13: The Tribunal failed to make adjustments sought by the Claimant to the conduct of
The hearing
[47]As recorded in paragraph 11 b of the liability judgment, the only adjustment sought by the Claimant was more regular breaks, and paragraph 12 records the Employment Judge’s recollection that “there were instances when the Claimant asked for additional breaks, and times when he was asked by the Employment Judge if he needed a break in light of upset or signs stress he was displaying. Every break requested by the Claimant was accommodated”. 11 of 15 Ground 14: The Claimant requested a preliminary hearing to deal with procedural issues including a strike-out application, a possible unless order and other directions to cure procedural defects[48]As noted above, all procedural matters were dealt with at the outset of the Final Hearing. There was no need for those to be dealt with by way of a separate hearing. Ground 15: The Respondent was permitted to serve key documents late in the preliminary hearings[49]The decisions taken in the Preliminary Hearings are not this Employment Judge’s to reconsider.[50]The only party which sought permission for late service and admission into evidence of documentary evidence in the Final Hearing was the Claimant, and some of those documents were admitted into evidence, and some refused. Ground 16: The Tribunal misapplied the burden of proof to the Claimant’s constructive unfair dismissal complaint. Once the Claimant showed that his resignation was in response to a potential breach by the Respondent, it is for the Respondent to show a fair reason and that it acted reasonably in all the circumstances[51]This is not an accurate statement of the law, and nor did the Claimant persuade the Tribunal that he resigned in response to a potential breach by the Respondent.[52]For these reasons the Claimant has no reasonable prospect of the liability judgment being varied or revoked on the basis of Grounds 1 to 16 (inclusive).[53]In relation to the costs judgment, again, each of the Claimant’s grounds for seeking reconsideration of that judgment has been considered below. In the First Application: Ground (A): The costs judgment is based on a flawed statement that no evidence of means was provided[54]As described and explained in paragraph 75 of the costs judgment, the Tribunal recognised that the Claimant had made statements as to his means, but decided not to take the Claimant’s statements into account. Ground (B): The costs application was considered by the Tribunal immediately after judgment was given, with no opportunity for further reply or hearing[55]After oral judgment was given on liability on 2 April 2025, the Respondent raised the issue of costs. The Employment Judge explained that she considered herself 12 of 15 bound to consider costs in any event. The Employment Judge took some time to read Rule 74(2) to the Claimant, and to explain the three questions she would be considering in connection with the matter of costs. A break of 1 hour and 40 minutes then followed to allow the Claimant time to consider that Rule, and the questions the Employment Judge had outlined. Upon the resumption of the hearing, the Claimant confirmed he had had time to read the Rule and engage with the questions outlined.[56]After the Respondent made its application, the Claimant made representations in response, and then the Respondent replied to the Claimant’s representations, and the Claimant had a further right of reply, which he used. After that point, the Employment Judge asked if either party wanted to say anything more, and the Claimant confirmed that he had said all he needed to say.[57]The Employment Judge had Ordered the Claimant to produce a statement of means, which he did on 15 April 2025. The Claimant included representations on the Respondent’s costs application in that document, and those were considered by the Employment Judge in reaching a decision on costs. Ground (C): The Tribunal did not consider repayment terms, despite that being raised[58]The Employment Judge took thorough notes of the representations made by the Claimant, and she does not recall, and nor do her notes record, this having been raised by the Claimant. Ground (D): The costs in the Counterclaim are inflated[59]The Claimant provides no explanation for this assertion, or evidence to support it. He did not challenge the property valuations provided by the Respondent ahead of the Final Hearing in that hearing. In the Second Application: Ground (I): The Tribunal made no findings of vexatious or unreasonable conduct on the part of the Claimant[60]The Tribunal did find that the Claimant had behaved vexatiously and unreasonably. Those findings are described in paragraphs 67 to 69 (inclusive) in the costs judgment. Ground (II): The Tribunal made no analysis as to the Claimant’s means[61]The Tribunal did not analyse the Claimant’s means, but nor is it obliged to do so. As the costs judgment sets out, Rule 82 provides that the Tribunal “may” have regard to the paying party’s ability to pay, but there is nothing in that rule or the case law that obliges it to do so in the circumstances found by the Tribunal to apply. This is explained in paragraphs 74, 75 and 79 (inclusive) of that costs judgment. 13 of 15 Ground (III): There was a public interest basis for the claims[62]The Claimant says that the costs judgment is unjust because there was a public interest basis for his claims. The Tribunal disagreed that there was any merit at all in the Claimant’s claims, and in fact concluded that it was clear to the Claimant at the outset that his complaints had no reasonable prospect of success. Ground (IV): The Tribunal relied on the Claimant’s resistance of the Counterclaim as a basis for imposing costs when there was no basis for the part of the Counterclaim that related to the return of PPE[63]As for Ground 3 of the liability judgment, the Claimant’s argument that the part of the Counterclaim that related to the return of PPE was unlawful was aired, considered and determined at the liability hearing. It is not a matter that is suitable for reconsideration (Ebury and Liddington). Ground (V): The costs award was disproportionate to the value of the items in question[64]The Claimant has provided no evidence for his assertion that the costs award was disproportionate. In the liability hearing the Claimant did not challenge the valuation of the items of property by the Respondent. In Application 2 the Claimant says the value he believes should apply to one of those items, but the determination in the judgment was that there were eight items belonging to the Respondent that were not returned by him.[65]The Respondent provided evidence that it had in fact incurred more than £90,000 worth of costs, but as it was only seeking a costs award on a summary basis it only requested £20,000 worth of costs. The costs award made was not disproportionate in the context of the work that would have been involved in resisting a Claim that was totally without merit from the outset, and where the Claimant had taken steps that increased the costs that the Respondent incurred (such as his misconceived strike-out application). Ground (VI): The costs decision was procedurally flawed[66]It is assumed that the procedural flaws the Claimant refers to in his application are those listed under the other Grounds for reconsideration of the costs judgment, each of which the Tribunal considers to be without foundation. Ground (VII): The Claimant was not afforded a fair opportunity to respond to the costs application[67]The Claimant confirmed in the hearing at which the costs application was made and responded to that he had said all he needed to say in response to the Respondent’s application. Furthermore, the Claimant sent his statement of means to the Tribunal on 13 April 2025 he set out 19 numbered points as to why the costs application should be rejected, and those matters were considered by the Tribunal before judgment of the Respondent’s application was made. 14 of 15[68]For these reasons, the Claimant has no reasonable prospect of the costs judgment being varied or revoked on the basis of any of Grounds (A) to (D) or (I) to (VII) (inclusive).[69]For the reasons set out above, the Claimant’s applications for reconsideration fail and the decisions made on liability and costs are confirmed.[1]The Respondent is a gas distribution company managing the network which distributes natural and green gas to homes and businesses in Scotland and Southern England.[2]The Claimant worked for the Respondent from 3 January 2020 until 29 August 2022.[3]The Claimant commenced a period of sickness absence following a work-related injury on 29 November 2021. He never returned to work for the Respondent, and was: a) Paid in full for the period 29 November 2021 to 17 March 2022; b) Paid half pay for the period 18 March 2022 to 16 June 2022; and c) Paid statutory sick pay only, or no sick pay, for the remaining period of his employment.[4]The Claimant’s position, both during his employment with the Respondent and before this Tribunal, is that he should have been paid full pay for up to 12 months of sickness absence in accordance with the Respondent’s applicable policy, as he said he had been injured as a result of an assault at work. The Respondent 1 of 18 disagreed with that characterisation, and instead regarded the Claimant’s injury as being as a result of an accident. The Respondent paid his sick pay in accordance with the policy applicable to sickness absence due to an accident at work.[5]During his sickness absence, the Claimant refused to engage with the referrals made by the Respondent to Occupational Health. The Respondent made it clear that one reason it wanted to have the benefit of occupational health advice was to explore adjustments that could be made to enable the Claimant to return to work.[6]On 7 March 2022, the Claimant, while submitting statements of fitness for work which said he was unfit for any work, commenced working for another company in the gas industry - Centrica.[7]After a period of ACAS Early Conciliation which began on 24 September and ended on 5 November, both of 2022, the Claimant brought a claim against the Respondent on 5 December 2022 (given case number 2304651/2022). BY that claim the Claimant has complained that: a) He was constructively unfairly dismissed by the Respondent; b) He was owed pay in lieu of the holiday that he had accrued but not taken on the termination of his employment; c) He was wrongfully dismissed and was owed notice pay; and d) The Respondent had made unauthorised deductions from his wages, or alternatively breached his contract of employment by the amount he was paid, in respect of the period of sick leave when the Claimant was not paid in full when he says he should have been.[8]The Respondent, in its Response filed on 15 February 2023, brought a counterclaim (given case number 2305010/2023), alleging that: a) The Claimant was in fundamental breach of his employment contract with the Respondent from the date he started working for Centrica (7 March 2022), and from that point onwards the Claimant was not entitled to any sick pay from the Respondent. It sought reimbursement of the sick pay it paid to the Claimant from that date onwards (less the sum the Respondent would otherwise have paid the Claimant in lieu of his accrued but untaken holiday on the termination of his employment); and b) The Claimant had not returned various items of its property to it, and seeking consequent compensation from him.[9]The Respondent sent the Claimant a letter warning him of the risks that costs could be awarded against him on: a) 1 March 2023. This letter commented on the Respondent’s assessment of the merits of the Claimant’s constructive unfair dismissal complaint, and 2 of 18 expressed the view that the Claimant had acted “deceitfully” during his employment with the Respondent and that his claim was untenable. The letter said that the tribunal could order the Claimant to pay some or all of the Respondent’s costs; and b) 29 September 2023. This was a five page letter commenting on the merits, and on the financial value of the Claimant’s claims if they were to be successful, given he had commenced new employment with Centrica during his employment with the Respondent. That letter repeated that the Tribunal could make a costs award against the Claimant. (Those letters were sent on a “without prejudice save as to costs” basis.)[10]The Tribunal gave oral judgment on both these cases on 2 April 2025, dismissing each of the Claimant’s complaints and upholding both of the Respondent’s complaints in its counterclaim (albeit that the value of the first counterclaim complaint upheld by the Tribunal – for reimbursement of sick pay - was less than the sum claimed by the Respondent). The Tribunal was critical of the Claimant’s conduct and honesty when giving that judgment, including: a) Observing that it was plain that some of the Claimant’s allegations were not made out, such as the complaint he made that he requests for support in relation to his requests for his pay issues to be resolved had been ignored by HR and the managers in question. The Tribunal found that both HR and the Claimant’s manager had gone to some trouble to respond to his pay issues, and that it was in fact the Claimant who had not responded to communications from them; b) Observing that the Claimant had misrepresented the true position on some matters to the Tribunal - for example, he asserted that the Respondent withheld pay from him, whereas the Tribunal found that the Claimant “knowingly acted against a management instruction” by working the shift in question, and that the Respondent ultimately authorised payment when the Claimant provided the relevant manager with the information that manager needed so as to do so; c) Finding that the Claimant was in obvious and fundamental breach of contract when he commenced work for Centrica whilst still employed by the Respondent, as:(i) This breached his duty of fidelity;(ii) This breached the clear term in his written contract of employment that he was to be available for shift work with the Respondent between the hours of 8am and 8pm six days a week, as his Centrica role was from 9am to 3:30pm Monday to Friday; and(iii) He patently was fit for some work if he was working for Centrica, and so the position he represented to the Respondent that he was unfit for any work was fraudulent, 3 of 18 and he was aware of that fact, given: i. He told the Tribunal he checked the terms of his contract of employment with the Respondent before accepting the Centrica role; ii. The Tribunal considered that the Claimant’s refusal to engage with occupational health, or to meet with Ms Baldwin and Mr Shaw (from the Respondent’s HR and management teams respectively) was because (I) he was already undertaking work for another organisation and he was concerned that occupational health would see his ability to do so, and (II) attending those appointments were incompatible with his commitments to his new employer; and iii. The Claimant is an intelligent man and knew what he was doing; d) Finding (in consequence of the previous point) that the Claimant had unashamedly attempted to mislead the Tribunal about these matters by the arguments he made in support of his Claim; and e) Finding that the Claimant had been dishonest about returning the Respondent’s property.[11]In relation to the conduct of the hearing, the Claimant made some allegations in support of his application to strike-out the Respondent’s Response (and its counterclaim) that were evidently unsupportable, e.g.: a) That the Respondent had failed to actively pursue its Response and the counterclaim. There seemed to be no basis whatsoever for this assertion; and b) That the counterclaim was vexatious and had no reasonable prospects of success. While the Claimant may not have understood the meaning of “vexatious”, he would have understood that its prospects would depend on evidence, and he knew that he had admitted commencing employment with Centrica while claiming and receiving sick pay from the Respondent, and that he had no proof of returning the Respondent’s property to it and so there was some real prospect of the Respondent succeeding in that aspect of the counterclaim.[12]Also as part of that strike-out application the Claimant was highly critical of the Respondent’s disclosure process, and made those criticisms by himself disclosing material that he had apparently not been able to access until a few days prior to the commencement of the Final Hearing. The Claimant’s explanation was that, when in possession of his work mobile telephone he had forwarded certain text messages and emails to his personal number and email account, and that his personal mobile telephone had subsequently become 4 of 18 water-damaged. He said that, due to plugging that water-damaged mobile telephone into a computer (only a few days ahead of the hearing, apparently not having thought to do so previously), he was then able to retrieve messages that he said the Respondent would have had in its possession and should have disclosed to him. This was a highly doubtful account, and it did not show that the Respondent had those messages in its possession or control (as Mr Jackson, for instance, explained that his work mobile phone had been replaced and he did not have any text or WhatsApp messages from the time with which the complaints were concerned). On the contrary, this showed that the Claimant had those messages and had failed to disclose them himself.[13]Following delivery of that oral judgment, the Respondent applied for an Order to be made in its favour for costs against the Claimant. The Claimant made oral representations resisting that application.[14]The Tribunal reserved its decision on that Application, and Ordered that the Claimant provide the Tribunal with a written statement of means (with a copy to be given to the Respondent).[15]The Claimant provided a written statement of means on 15 April 2025. The costs application[16]The Respondent’s application is made on the bases that: a) The Claimant acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the proceedings and the way in which the proceedings have been conducted, pursuant to Rule 74(2)(a) of the Employment Tribunal Procedure Rules 2024 (the ET Rules); and b) The Claimant’s claim had no reasonable prospect of success, pursuant to Rule 74(2)(b) of the ET Rules.[17]In support of its application the Respondent submitted an invoice list from the Respondent’s firm of solicitors, listing various invoices it sent to the Respondent in connection with this case, for an aggregate sum of £91,750.25. The Respondent seeks an award for costs on a summary basis, in the amount of £20,000.[18]The Claimant resisted that application on the basis that: a) He did not act vexatiously, abusively, disruptively or otherwise unreasonably in the bringing of the proceedings. He says his only reason for bringing the claim to the Tribunal was the significant breaches of health and safety legislation by the Respondent, and the injury which he sustained in the course of working for the Respondent, which was the only reason he was absent from work; and b) His claim did have reasonable prospects of success. In relation to this, the Claimant says that: 5 of 18(i) He took legal advice from two different sources which confirmed that he could take a second job in the gas industry where the second job did not involve him undertaking gas work in people’s houses;(ii) The Respondent was the first party to fundamentally breach the contract of employment between them by its failure to ensure a safe place of work for him to return to after his sickness absence began;(iii) The Tribunal has failed to acknowledge that the heart of his claim was that the Respondent was in breach of sections 44 and 47B of the Employment Rights Act 1996 (the 1996 Act) (that he was subjected to detriments on health and safety grounds, and on the grounds that he had made protected disclosures), and those complaints had very good prospects of success; and(iv) He is a litigant-in-person.[19]In relation to his financial circumstances, he said that: a) He has ceased employment with Centrica in December 2024, and he has no income; b) His partner is being made redundant in May 2025; c) They have two young children; and d) He does not have any assets of significant value – he does not own a house, he owns a car but not a valuable one, and he has a bank account with around £200 in it. He has also cited his poor mental health.[21]On the issue of the Claimant’s means, the Respondent replied that the Tribunal should also take into account his what his means will be within the reasonably foreseeable future, and posited that the Claimant’s prospects are good given he has a niche set of skills and has been in gainful employment until relatively recently. Miss Quigley said that the Tribunal can be confident that the Claimant could get a new job within that reasonably foreseeable future. She also asks the Tribunal to note that the Respondent’s application has seen it reasonably cap its costs – the costs it has in fact incurred are significantly higher than those sought in its application.[22]The Claimant disagreed about his prospects. While he acknowledged that he has a niche set of skills, he said he works in a niche and small industry, and “word gets around”. He says that he has challenged the Respondent about something it did wrong, and employers want “yes men”. He also considers that, because he wishes to appeal the liability judgment, publication of those written reasons will damage his employment prospects. Overall he says that his prospects of reemployment are extremely limited, and if he wishes to commence self6 of 18 employment he would need to invest around £15,000 in order to do so, and he does not have the means to do that. The hearing[23]At the end of liability judgment given orally, the Employment Judge noted that she would be considering whether an award of costs against the Claimant was appropriate. The Respondent was represented in that hearing by Miss Quigley, Counsel. The Claimant represented himself. The Employment Judge directed the Claimant to look at the relevant Rules, and informed him of the three questions she would be considering. A break of 1 hour 40 minutes was taken, so as to give the Claimant the opportunity to look at the relevant rules and consider what he wanted to say about the relevant questions. Upon the parties’ return, the Claimant said that he had looked at Rule 74 over the break.[24]The Respondent made its application and the Claimant responded to it in submissions, and each had the right of reply to the other’s arguments, which each took. At the end of that exchange, the Claimant confirmed he had said all he needed to say in response to the Respondent’s application.[25]No oral evidence was heard from the Claimant, but instead he was instructed to provide a written statement as to means, which he did. No further representation was invited from the Respondent on that statement, and nor was any provided.[26]The Tribunal reserved its decision on the Respondent’s application, and decided that application on the basis of the parties’ representations and the Claimant’s written evidence. Law[27]Unlike in the civil courts, costs do not ‘follow the event’ in the Employment Tribunal, and an award of costs remains the exception rather than the rule (Yerrakalva v Barnsley Metropolitan Borough Council [2012] ICR 420). This does not mean, however, that in order for a costs application to succeed the facts of the case have to be exceptional – all that is needed is for the relevant test to be satisfied (Power v Panasonic (UK) Ltd UKEAT/0439/04).[28]The Tribunal’s power to order costs is set out in Rule 74 of the ET Rules: “(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— 7 of 18(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 of it, or the way that the proceedings, or part of it, have been conducted,(b) any claim, response or reply had no reasonable prospect of success, or(c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.[29]Such an application may be made “at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties” (Rule 75(1)).[30]As described in the case of Daly v Newcastle Upon Tune Hospitals NHS Foundation Trust EAT/0107/18, there are three stages to a Tribunal considering a costs application: a) Does it have jurisdiction to award costs? b) If the Tribunal does have discretion to award costs, should it do so? c) If the answer to the previous question is ‘yes’, what is the appropriate amount? (i) Does the Tribunal have jurisdiction to award costs?[31]The burden of establishing that the tribunal has jurisdiction to make an award of costs sits with the applicant (Haydar v Pennine Acute NHS Trust EAT/0141/17).[32]The Tribunal may not make an award of costs unless the paying party “has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order)” (Rule 75(2)). No reasonable prospect of success[33]Whether there was no reasonable prospect of the claimant’s claim, or the respondent’s response (as appropriate), succeeding is assessed on the basis of the information that was known or reasonably available at the time the claim was brought, or the response presented (as appropriate), or the other time at which the party applying for costs says the other party should have acted so as to withdraw the claim or response (Radia v Jefferies International Ltd EAT/0007/18).[34]The meaning of “claim” or “response” in this context is a reference to the bringing or resisting of each legal complaint in that claim or response (Opalkova v Acquire Care Ltd EA-2020-000345-RN).[35]The tribunal should consider: 8 of 18 a) Whether, objectively, when the claim was presented or the response submitted (as appropriate), did it have no reasonable prospect of success, or did that become the case at a later stage when more evidence was available? b) At the stage that the claim or response had no reasonable prospect of success, did the relevant party know that was the case? c) If the relevant party did not know that the claim or response had no reasonable prospect of success, should they have known? This assessment is likely to be more rigorous where the party is legallyrepresented (Opalkova). Acted vexatiously[36]As Lord Bingham put it in Attorney General v Barker [2000] 1 FLR 759, “the hallmark of a vexatious proceeding is… that it has little or no basis in law… that whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.[37]The concept of vexatiousness “implies the doing of something over and above that which is necessary for the conduct of the litigation, and suggests the existence of some spite or desire to harass the other side to the litigation, or the existence of some other improper motive” (Cartiers Superfoods Ltd v Laws [1978] IRLR 315). Acted unreasonably[38]The word “unreasonable” has its ordinary English meaning, and is not to be interpreted as if it means something similar to vexatious (Dyer v Secretary of State for Employment [1983] 10 WLUK 154).[39]A finding by a tribunal that a party has lied does not automatically mean that party conducted the proceedings unreasonably. The whole circumstances of the case should be considered, including the procedural history (such as unsuccessful applications delaying the conclusion of the case) and the extent to which the lie made a material impact on the case (i.e., the matters about which the party lied may, or may not, have been material to the reasons the complaints did or did not succeed) (Kapoor v The Governing Body of Barnhill Community High School UKEAT/0352/13).
Facts
[40]“A lie on its own will not necessarily be sufficient to found an award of costs. It will always be necessary for the tribunal to examine the context and to look at the 9 of 18 nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct” (Arrowsmith v Nottingham Trent University [2012] ICR 159).[41]The relevance of the lie to the question of unreasonable conduct will depend on whether the case advanced by that party was materially dependent on them advancing the lie (Arrowsmith [2011]). (ii) Should the Tribunal exercise its discretion to make an award for costs?[42]There is no obligation on a Tribunal to make a costs award when the jurisdiction to do so is engaged (save in the circumstances described in Rule 74(4), which do not apply here) – it remains a matter of discretion as to whether to do so – but it is obliged to consider whether to do so.[43]The tribunal should adopt a broad-brush approach to identifying the conduct which engages the costs jurisdiction and its effect (Sud v Ealing London Borough Council [2013] ICR D39.[44]The principle of relevance means that the Tribunal must have regard to the nature, gravity and effect of the unreasonable conduct (or other matter which gives rise to the costs jurisdiction) when considering whether to exercise the discretion to make an award of costs (McPherson v BNP Paribas [2004] EWCA Civ 569). The purpose of an award of costs is to compensate, not to punish.[45]The nature of the conduct of the party in question involves considering, at the stage that it took place: a) Whether the relevant party knew that it was unreasonable, vexatious, had no reasonable prospect of success (etc. – did they appreciate the matter that forms the jurisdictional basis for the costs award); and b) If not, whether they should have known (Opalkova v Acquire Care Ltd UKEAT/0209/20/RN).[46]A litigant in person should be judged less harshly than one who is professionally represented (AQ Ltd v Holden [2012] IRLR 638). The Tribunal may wish to take account of any imbalance in legal representation between the parties (Gee v Shell UK Ltd [2002] EWCA Civ 1479).[47]As regards “effect”, as per Yerrakalva, any causal link between the jurisdictional basis for the award of costs and the costs incurred by the applicant is a relevant, though not a constricting factor, to considering whether a costs award should be made.[48]While individual considerations are important (such as, for example, whether a party was dishonest), it is also vital to look at the whole picture, and not to lose sight of the totality of the circumstances (Yerrakalva). This will include consideration of the conduct of the applicant, and the likely effect of the applicant’s conduct on the costs incurred. 10 of 18 Costs warnings – or their absence[49]One aspect of the applicant’s conduct that may be relevant is whether they warned the paying party of the risk of a costs award, and if so, how that was communicated: for example, if it was done in a threatening manner, if it explained the weakness of the other side’s position in a straightforward manner case, if it quantified the costs it would or may seek – Rogers v Dorothy Barley School UKEAT/0013/12.[50]There is no general principle that there should be a costs warning letter in advance of a costs application (Vaughan v London Borough of Lewisham UKEAT/0533/12), but a failure to engage with arguments in the costs warning letter can be a factor to weigh in the balance as to whether an award of costs should be made (Peat and others v Birmingham City Council UKEAT/0503/11). The costs warning letter in that case had enhanced the prospects of an award of costs being made. Ability to pay[51]The tribunal may also have regard to the paying party’s ability to pay (Rule 82 of the ET Rules) (as Mr Recorder Luba QC put it in Mirike v Wilson & Co Solicitors UKEAT/0025/11, the discretion to take account of the paying party’s means or not is a “discretion within a discretion”). This does not mean that “poor litigants may misbehave with impunity and without fearing that any significant costs order will be made against them, whereas wealthy ones must behave themselves because otherwise an order will be made” (Kovacs v Queen Mary and Westfield College [2002] EWCA Civ 352).[52]Any assessment as to means must be based on evidence.[53]Where the tribunal is asked to take this into account, it should state both whether it has done so, and if it has, how that has been done (Jilley v Birmingham and Solihull Mental Health NHS Trust [2007] 11 WLUK 517).[54]“It is likewise not capable of dispute that unreasonableness of the paying party’s conduct may weigh in the exercise of the discretion on whether to have regard to their means or ability to pay. Where, as here, the non-attendance by the party is treated by the Employment Tribunal as another instance of unreasonable behaviour, it cannot be irrelevant to the exercise of the discretion whether to have regard to the means of the non-attending party.” (Mirike).[55]The weight to be given to a relevant consideration is a matter for the tribunal, unless it amounts to an error of law (Mirikwe).[56]A tribunal may take account of the paying party’s reasonable financial prospects, including future earning potential, when deciding whether to make a costs order against them (Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797 and Vaughan v Lewisham LBC [2013] IRLR 713). 11 of 18[57]Considering ability to pay involves consideration of both income and capital and savings (Shields Automotive ltd v Grieg UKEAT/0024/10), and can involve consideration of the party’s spouse or partner’s means (Abaya v Leeds Teaching Hospital NHS Trust EAT/0258/16). (iii) What is the appropriate value for the costs order?[58]Cost awards are compensatory, not punitive (e.g., Lodwick v Southwark London Borough Council [2004] ICR 884).[59]Any award of costs should be limited to costs reasonably and necessarily incurred, but it is not necessary to establish a precise causal link between the costs incurred and the basis for the jurisdiction (e.g., unreasonable conduct) (Yerrakalva). However, that does not mean that where, for example, there has been some unreasonable conduct it is necessarily appropriate to make an award for the other party’s costs for the whole of the proceedings (McPherson).[60]The tribunal may take into account the paying party’s ability to pay when assessing the value of the award, but it is not obliged to do so. The tribunal should say if it has, and if so, how (Jilley).[61]The tribunal is not required to confine the sum of an award of costs to an amount that the paying party can pay (Arrowsmith [2011] EWCA Civ 797).[62]“The vital point in exercising the discretion to order costs is to look at the whole picture of what has happened” (Yerrakalva).[63]Pursuant to Rule 76(1), the Tribunal may Order the paying party to pay an amount of costs not exceeding £20,000 by way of unassessed costs. Detailed assessment is required for any Costs Order exceeding £20,000. Analysis (i) Does the Tribunal have jurisdiction to award costs?[64]The burden of establishing that the Tribunal has jurisdiction to make an award of costs sits on the Respondent – and it has discharged that burden – it is abundantly clear that the Tribunal does have jurisdiction to make an award of costs in this case.[65]The Respondent’s application was made on the date that liability judgment finally determining the proceedings was given in this case (so was well within the period stipulated by Rule 75(1)), and the Claimant has had a reasonable opportunity to make representations in the hearing, after a break post-judgment which he confirmed was sufficient. The Claimant also confirmed, by the end of submissions on the application that he had “said all [he] needed to say”. Rule 75(2) was therefore satisfied.[66]The Tribunal agrees with the Respondent that it has the power to make an award of costs, for the reasons outlined below. 12 of 18 No reasonable prospect of success a) The Tribunal has already found in its judgment on the substantive case that the Claimant, by bringing his Claim, had unashamedly attempted to mislead the Tribunal about matters which he clearly knew to be untrue.(i) His complaint that he was constructively unfairly dismissed was premised on five allegations: I. That the Respondent did not provide support after he was injured at work in November 2021. That was patently untrue – the Claimant’s line manager, Tom Jackson, did express concern and offered support to the Claimant, as did the Respondent’s HR team. The Claimant was the recipient of that support, and so knew it had been provided. II. That the Respondent withheld the Claimant’s pay in December 2021. The Tribunal found it did not – the Claimant worked a shift against express instructions, and then pursued payment. When the Respondent decided to authorise payment anyway, the Claimant did not provide the requisite information and thereby delayed his receipt of that sum. Again, the Claimant knew he was working the shift against clear instructions, and he knew at the time of bringing his claim that the delay in paying him was due to a combination of that fact and his own failure to provide details to the Respondent on a timely basis. III. That during communications with HR and Mr Jackson’s boss, the Claimant felt he was ignored as regards his request for support when he was injured at work, and his requests for his pay issues to be resolved. The Claimant failed to evidence that allegation. IV. That there was delay in communicating with the Claimant over his requests for full pay during sick leave and refusal to engage with the Claimant as regards those issues. The Tribunal found the factual premise of this assertion to be clearly incorrect – the time it took the Respondent to reply to the Claimant was reasonable, and it did engage with him over this issue. Again, the Claimant knew this when he presented his Claim Form. 13 of 18 V. That the Respondent halved the Claimant’s pay and failed to engage with him when he requested his pay to be reconsidered. The Claimant’s rate of pay halved after 15 weeks of full sick pay (in accordance with the policy the Respondent applied to the Claimant’s sick leave), but the Respondent did engage with him over that when he requested that he continue to be paid in full. Again, the Claimant knew this to be the case when he presented his Claim.(ii) His complaint that the Respondent owed him compensation for accrued but untaken holiday on the termination of his employment was again evidently groundless at the time the Claim was presented. The Claimant’s contract of employment (which he said he had checked, so as to establish whether he could simultaneously take up employment with Centrica) incorporated the SGNC Joint Agreement, and that collective agreement expressly entitled the Respondent to deduct from sums owed to the Claimant any sums that the Claimant owed to the Respondent. Even if the Claimant had not seen a copy of the SGNC Joint Agreement as he avers, this point was made plain to him by the Respondent in its letter of 31 August 2022, well ahead of the date the Claimant presented his Claim.(iii) His complaint that he was wrongfully dismissed was also presented by the Claimant knowing it was without foundation. The Claimant had commenced employment with Centrica on 7 March 2022, while still bound by the terms of his contract of employment with the Respondent. Those two employments were incompatible, given he had agreed to be available to work for the Respondent for 38.75 hours per week during rostered hours between Monday and Saturday from 8am to 8pm, and then agreed to work for Centrica Monday to Friday from 9 am to 3:30pm. He knew he could not work both of those jobs at the same time, and so entry into his contract of employment with Centrica fundamentally breached his contract of employment with the Respondent. He also fundamentally breached that contract of employment when he presented statements of fitness to work to the Respondent from 7 March 2022 onwards (possibly earlier) saying that he was unfit for any work when that was patently untrue, as he was undertaking work for Centrica. He was defrauding the Respondent of that sick pay. The Respondent outlined that analysis when it wrote to him on 31 August 2022. The Claimant knew of that when he presented his Claim to the Tribunal on 5 December 2022. 14 of 18(iv) His complaint that the Respondent made unauthorised deductions from his wages by not continuing to pay him full sick pay from 18 March 2022 until his employment terminated on 29 August 2022 was, again, obviously totally without merit. A good understanding of employment law is not necessary to comprehend that if you are working for on person, saying to another that you are unfit for any work is dishonest. b) The Claim very clearly had no reasonable prospect of success at the time the Claimant presented it (Radia), and he knew that and continued to understand that throughout his pursuit of it. c) Addressing the Opalkova questions: (i) Objectively, each complaint the Claimant made in his Claim Form on 5 December 2022 had no reasonable prospect of success; (ii) The Claimant knew that at the time of presenting that Claim Form; and (iii) He should have known that at that time, given he knew the untruthfulness of his assertions on the facts, and the Respondent had explained how the law applied in relation to his complaints regarding holiday pay and notice pay in its 31 August 2022 letter. d) The Tribunal evidently therefore has jurisdiction to make a costs award against the Claimant pursuant to Rule 74(2)(b). Acting vexatiously[67]The Claimant knew his Claim was totally without merit, and he brought it in circumstances that amounted to an abuse of process – it was patently obvious to a person acquainted with the true facts as he was that it was not going to succeed. The Claimant brought the Claim in exactly the kind of circumstances described by Lord Bingham in the case of Barker, and in the Cartiers Superfoods case. The Tribunal’s jurisdiction to award costs under Rule 74(2)(a), under the “acted vexatiously” sub-category, is therefore engaged. Acting unreasonably[68]The Tribunal has already found that the Claimant knowingly misrepresented the true factual position on some matters to the Tribunal in an attempt to mislead it (e.g., when he said that the Respondent refused to engage with his requests for full sick pay), and that he had been dishonest about returning the Respondent’s property to it.[69]Given that “unreasonable” is to be given its ordinary English meaning (Dyer), knowingly misrepresenting the position so as to mislead the Tribunal, and being dishonest, is capable of being unreasonable conduct. The case law also makes it clear that a lie on its own will not necessarily be sufficient to found an award of costs (Arrowsmith). Here, though, the misrepresentation and dishonesty was 15 of 18 present from the beginning of the case, and were not about trivial side issues but go to the root of the Claimant’s complaints. This is clearly sufficient to engage the Tribunal’s jurisdiction to make a costs award under Rule 74(2)(a). (ii) Should the Tribunal exercise its discretion to make an award for costs?[70]Whilst noting that an award of costs in the Employment Tribunal is an exception rather than the rule (Yerrakalva), it is abundantly clear that it is appropriate to do so in this case.[71]Consistent with what has been observed above, the Tribunal considers that: a) The Claimant knew his Claim had no reasonable prospect of success before he presented it. He has attempted to present a false narrative to mislead the Tribunal. b) He also failed to comply with his disclosure obligations, and only disclosed further material which he said was relevant during the liability hearing when he thought it suited his purposes. c) The nature of this unreasonable and vexatious conduct has absorbed considerable Tribunal time, delaying justice in other cases, and even more time and cost to the Respondent in resisting it. d) While a causal link between the costs the Respondent incurred and the jurisdictional basis for making a costs award is not required, the existence of such a link is relevant (Yerrakalva). Here there is a clear and direct causal link, as the Claim should never have been presented in the first place. The nature, gravity and effect of this conduct strongly pushes in favour of exercising the discretion to make an award of costs.[72]The Tribunal should look at the whole picture and the totality of the relevant circumstances (Yerrakalva), and in that regard the Tribunal notes that: a) Some of the Respondent’s costs have been incurred in its pursuit of the counterclaim, but again, that is attributable to the Claimant’s fraudulent (claiming sick pay for being unable to do any work while he was well enough to work for Centrica) and dishonest (not returning the Respondent’s property) conduct. b) The Respondent’s costs are very high – nearly £92,000 – but it has applied for a costs award of the considerably lesser sum of £20,000. Given the procedural history and the numerous applications the Claimant has made, the Tribunal judges that the Respondent’s incurring costs exceeding £20,000 for that work is reasonable. c) The Respondent made two costs warnings to the Claimant (on 1 March 2023 and 29 September 2023), the latter of which went into some detail of the merits and the value of the Claimant’s complaints were he to succeed. 16 of 18 Those letters sent clear messages to the Claimant that the Respondent would be putting a case to the Tribunal that he had acted deceitfully – which is indeed what the Tribunal has ultimately found. Again, these factors push in favour of the Tribunal exercising its discretion to make a costs award.[73]The Tribunal has also borne in mind that the Claimant is a litigant in person (although he has indicated that he received legal advice from two sources about taking up employment with Centrica while employed by the Respondent), and should be judged less harshly than one who is professionally represented (Holden), however the total lack of merit in nearly all of the Claimant’s case would have been obvious to anyone, and the Claimant is an intelligent man who has gone to some care to research the law in this area. The one complaint where that may not have been obvious is the complaint for unpaid holiday pay – but the Respondent explained its position in that regard in its 31 August 2022 letter, well ahead of the date when he presented his Claim (5 December 2022). The fact the Claimant is a litigant in person does not, the Tribunal finds, come anywhere near close to overriding the strong “push” factors for the Tribunal’s discretion to award costs to be exercised. Nor does the Claimant’s poor mental health.[74]The Claimant has presented himself as impecunious, and says that that militates against the exercise of the Tribunal’s discretion. The Respondent says that, if the Tribunal does take account of the Claimant’s means, it should acknowledge that the Claimant has a niche set of skills and therefore the Tribunal should be confident that he could get a new job at an equivalent rate of pay to his role with the Respondent.[75]As was noted in the Mirike case, the “unreasonableness of the paying party’s conduct may weigh in the exercise of the discretion on whether to have regard to their means or ability to pay”. Here, the Claimant has shown himself to be dishonest in a number of ways, and therefore the Tribunal does not feel able to rely on any of his evidence as to his means. The Tribunal has therefore decided to give no consideration to the Claimant’s ability to pay as part of its consideration of whether to exercise the discretion to make an award of costs. The Tribunal also does not consider it relevant that the Claimant says the scope of his claim should have been wider – the Tribunal’s assessment of his application to amend has no bearing on the reasonableness of his conduct of the case he did bring.[76]Weighing those matters up, the Tribunal finds that the interests of justice heavily fall on the side of the discretion to make an award of costs being exercised on the facts here. (iii) If a costs order should be made, what is an appropriate value of that order?[77]Any award of costs is to compensate the receiving party, not to punish the paying one (Lodwick) – but the Tribunal has concluded that, from the very beginning, the Claim was without merit, and that the Claimant understood that fact and acted 17 of 18 vexatiously and unreasonably by pursuing it and resisting a meritorious counterclaim. He could have taken steps to reduce the costs the Respondent was incurring – for example, by returning the Respondent’s property the Tribunal has concluded he did not return, or by not making or pursuing an application to strike out the Respondent’s Response and counterclaim on bases that were evidently without foundation, and only served to waste the Respondent’s time and resources in resisting it. He chose not to do so.[78]While any award of costs should be limited to costs reasonably and properly incurred, the Employment Judge’s experience of legal practice informs the Tribunal’s assessment that costs exceeding £20,000 would reasonably and properly have been incurred by the Respondent in getting to the conclusion of the case.[79]For the same reasons as set out above, the Tribunal declines to take account of the Claimant’s ability to pay in setting the value of the costs award.[80]While costs awards are the exception in the Employment Tribunal, the Claimant’s behaviour here renders a costs award appropriate. The whole picture should be examined, and the Claimant’s clear understanding of what happened in fact, his steadfast refusal to make reasonable concessions or withdraw his case during its progression, the limited portion of its costs that the Respondent seeks to recover, and the adjudged reasonableness of its having incurred costs in that amount means that a compensatory approach to costs should rightly see a sizeable award ordered.
Conclusions
[81]For all of the above reasons, the Respondent’s application succeeds, and the Claimant is Ordered to pay to the Respondent the sum of £20,000 by way of costs pursuant to Rule 76(1)(a).