Mr E P Sodje v Macclesfield Town Football Club Ltd: 2401718/2016
EMPLOYMENT TRIBUNALS
Case No 2401718/2016
Between
Mr E P SodjeClaimantMacclesfield Town Football Club LtdRespondent
Before
Employment Judge HolmesDate 24 April 2017
JUDGMENT
[1]The claimant was unfairly dismissed.[2]The claimant is entitled to compensation for unfair dismissal.[3]The tribunal makes no reduction in the basic or compensatory awards on the basis of any contribution by the claimant.[4]The tribunal makes no reduction to the compensatory award on the basis that a fair procedure would have made no, or some, difference pursuant to Polkey.[5]The tribunal proposes to award a basic award of £865.38, and compensation on the basis of loss of earnings for 6 months from the date of dismissal , 14 September 2016 , and hence he would be entitled to a compensatory award based on 6 months loss of earnings, plus loss of statutory rights.[6]The claimant was wrongfully dismissed, in breach of contract.[7]The claimant is entitled to damages for breach of contract in the form of notice pay. The tribunal finds that the appropriate notice period was 3 months , and proposes to award the net loss of earnings sustained by the claimant in that period, less benefits received , the sum of £2,924.53.[8]The parties are invited to seek to agree the relevant awards in respect of these claims. In default, either party may ask the tribunal to determine remedy either at a hearing, or, if the parties agree, on the basis of written submissions, and any further documents. Any such application for a further hearing , or for determination of the award due, or any element thereof, shall be made by 26 May 2017.
REASONS
[1]The claimant was employed as an Assistant Manager by the respondent until his dismissal on 14 March 2016. He complains of unfair dismissal, and also breach of contract , his dismissal being summary. The respondent admits the claimant was dismissed, and contends that it had a fair reason for dismissal, namely the claimant’s conduct, and that the dismissal was fair in all the circumstances. The respondent further denies wrongful dismissal, contending that the claimant was guilty of conduct which entitled it to dismiss the claimant without notice.[2]The hearing was commenced on 19 December 2016, and continued on to 20 and 21 December 2016. As closing submissions could not be made within the hearing , the parties agreed , and the Employment Judge considered that this was an appropriate case for, written submissions to be made. These were received, and the tribunal considered them in Chambers on 8 February 2017. Further disclosure was given as well, but neither party wanted any witness recalled, or to reconvene an oral hearing, to deal with this additional material.[3]The tribunal has deliberated in chambers on 8 February 2017, and now promulgates this judgment. The tribunal apologies for the delay in promulgation, occasioned by pressure of judicial business.[4]The respondent called Alan Cash, Colin Garlick, Mark Blower, James Beckett,and Steve Watson . Additionally, witness statements from Byron Jenkins and Stewart Joseph were adduced on behalf of the respondent, but they were not called to give live evidence. The claimant gave evidence, and called Richard Jobson, Garry Doolan and Leonard McGarry. The claimant also adduced a statement from Karibo Lawson, but he was not called. There were two Bundles, the original Bundle, and a Supplementary Bundle produced by the respondent during the adjournment, comprising mostly of minutes of Management Committee meetings from 12 August 2015 to 25 April 2016, and a letter to John Askey dated 1 July 2016. Having heard and read the evidence, and considered the documents in the agreed Bundles , and having considered the submissions of both parties, the tribunal finds the following relevant facts: 4.1 The claimant was a professional footballer, and played for the respondent club between 1997 and 1999. On 1 July 2013 he was employed by the respondent as an Assistant Manager , initially for a 12 month period from 1 July 2013 . His salary for the 2013/14 Season was £31,000 per annum. The Manager at the time, and throughout the period relating to the claims, was John Askey.
procedure.
[5]I do not believe that the decision was a management committee decision and as stated in 4 above, was that of Alan Cash and him alone.[6]I understand your remark with regard to inconsistency but I also understand Alan’s decision that no sanction should be taken with regard to this matter.[7]I do not think it is wrong of Alan Cash to categorise your verbal abuse of Gerard Coyne and Lewis Stanton as gross misconduct. At the time of the incident you were aware that you were under a final written warning issued on the 12th November 2014.[8]In the circumstances I do not believe it was unreasonable of Alan Cash to dismiss you.” 4.58 By letter of 28 April 2016 Stephen Poynton wrote to the claimant’s solicitors with the outcome of the grievance appeal, which he dismissed (pages 249 to 251 of the Bundle). 4.59 The respondent, during the adjournment after the hearing concluded on 21 December 2016, gave further disclosure in a supplemental bundle, numbered pages 1 to 46. The first 45 pages are minutes of the respondent’s management
The Law.
[9]Additionally, the Tribunal has been referred to, and has considered, cases on the effect of delay in disciplinary proceedings, in particular, Royal Society for the Prevention of Cruelty to Animals v Cruden [1986] IRLR 83 , A v B [2003] IRLR 405 , and Christou v London Borough of Haringey [2012] IRLR 622. Discussion and findings: (i) Unfair Dismissal.[10]The tribunal’s first task is to establish whether there was a potentially fair reason for dismissal. The burden of establishing such a reason lies upon the respondent, but once such a reason is established, the burden of establishing fairness is neutral. In this case the respondent relies firmly and squarely on one reason only, and that is “conduct”, one of the potentially fair reasons within s.98. That reason specifically is the claimant’s conduct in allegedly verbally abusing Gerard Coyne and Lewis Stanton on 23 July 2015.[11]The next issue therefore is whether, that reason having been established, it was in fact fair to dismiss for that reason in all the circumstances. The burden of establishing fairness is neutral, and in deciding whether the dismissal was fair, in both procedural and substantive terms, the tribunal does not substitute its own view, but considers instead whether the decision to dismiss fell within the band of reasonable responses.[12]Dealing first with the claimant’s contention that the decision to dismiss him was effectively taken by Mark Blower, who had a hostility towards him and wanted him out of the club, which was the real reason for the dismissal, the tribunal has no hesitation in dismissing that assertion as not being borne out by the evidence. Firstly, and most crucially, the dismissal was carried out by Alan Cash, not Mark Blower. Whilst the suggestion was made, and indeed Mr Cash was recalled for it to be put specifically to him, that he was merely carrying out Mark Blower’s wishes in dismissing the claimant, or was heavily influenced by Mr Blower’s animosity towards the claimant, he denied this and insisted that the decision was his, and his alone. The tribunal accepts this. Alan Cash, who has himself been Chairman in his time at[14]Further to that, however, the claimant’s premise that Mark Blower wanted him out , and seized this opportunity to dismiss him, is further undermined by an examination of his employment history under Mark Blower’s Chaimanship. It is to be borne in mind that the claimant would not have protection from unfair dismissal until July 2015. Thus, when the incident that led to the written warning in November 2014 occurred, it would have been an easy matter for Mark Blower to have sought his dismissal then. So too, of course, would it also have been even more attractive to seek his dismissal when, within weeks, and during the currency of that warning, further issues arose in connection with the fundraising event which led to a further warning. Two golden opportunities to dismiss the claimant thus presented themselves, but were not taken. Against that, however, are all the matters raised by the claimant in his grievance, and the history of his employment with the Club, which, of course, involved a reduction in salary, and issues as to use of a company car.[15]The tribunal, however, is satisfied that the initial decision to dismiss was taken by Alan Cash. It is for that reason that the tribunal has not made any findings as to the merits or otherwise of the claimant’s grievances against Mark Blower, and the various instances that he has alleged that Mark Blower treated badly or expressed any desire to be rid of him. Similarly, whilst there is evidence that Steve Watson was a potential replacement assistant manager “waiting in the wings”, the tribunal is quite satisfied that the decision to dismiss was taken by Alan Cash, and he was not in any way , shape or form influenced, consciously or otherwise , by any pressure from Mark Blower, or any desire to replace the claimant with Steve Watson. It is for this reason that the tribunal has not made any findings as to the circumstances surrounding Steve Watson’s appearance at the Club. 15. The tribunal has therefore focussed on the decision taken by Alan Cash, on its own merits, regardless of any alleged extraneous factors and motives. The tribunal must examine the decision to dismiss as a whole to see if it was in fact fair. The tribunal has no hesitation in finding that the reason for the dismissal was indeed the claimant’s conduct, and that Alan Cash had a genuine belief that the claimant had been guilty of misconduct in the manner in which he spoke to the grounds staff on 23 July 2015. The question then is whether to dismiss in those circumstances was reasonable, in the sense of falling within the band of reasonable responses open to the employer, the tribunal, of course, being conscious that it must not substitute its views for those of the employer as established in the cases of Foley v. Post Office; HSBC Bank v Madden 2000 ICR 1283.[16]There is a major factor in this case which leads the tribunal to find that the decision to dismiss was outside the band of reasonable responses, and that is delay.[17]Whatever the position, there was, on any view, serious and unexplained delay between Stewart Joseph becoming aware of the allegation, and it being raised with the claimant. That delay itself follows on almost four months after the alleged incident. It transpires from Danny Walker’s statement (page 165 of the Bundle) that he told Robert Stirling and Mark Blower about it at the time, which, if correct, suggests that the respondent knew about it for even longer. That too is the implication of the evidence, given to the hearing before Alan Cash, that Helen Bona was aware of it earlier, as it was she who told Stewart Joseph about it. Both Mark Blower and Helen Bona sat on the Management Committee. The tribunal takes the point made on behalf of the claimant that both Alan Cash and Colin Garlick on[18]What, then, is the significance of this delay? Mr Fletcher for the respondent invites the tribunal to disregard it. There was a full investigation, statements were taken, and supplied to the claimant. No prejudice arises from the delay, and it has no bearing upon the decision to dismiss, if the tribunal concludes that the respondent was entitled to believe that there had been such an incident. If that was a reasonable conclusion, then it was reasonable to dismiss for that conduct, regardless of the staleness of the allegation.[19]Of the caselaw to which the tribunal has been referred Royal Society for the Prevention of Cruelty to Animals v Cruden [1986] IRLR 83 is the most apposite. There the EAT upheld a finding by a tribunal that deplorable and unexplained delay on the part of the employer in taking disciplinary action rendered the dismissal unfair. That was notwithstanding a finding that the claimant’s conduct entirely merited dismissal. It was not in accordance with equity or the substantial merits of the case to dismiss him when the employer did. An essential finding of the EAT was that this was so, even if there was in fact no actual prejudice to the employee. Thus, the delay in this case would, in the view of the tribunal, be sufficient in itself to warrant a finding that the dismissal was unfair. The tribunal, however, considers that the issue of delay bears further examination on the facts of this case. Whilst on the facts of Cruden there was found to be no actual prejudice, the tribunal in this instance is not satisfied that this can truly be said to be the case here. Firstly, the witnesses to the incident were not asked to make statements until over three months later. That must prejudice the potential fairness of any investigation. Secondly, and perhaps more importantly, the claimant was not interviewed about the allegation, nor was it even put to him, until after 21 January 2016. Thus the employer’s witnesses had been asked to recall events at least three months earlier than the employee was, and they made statements at that time. The delay in even asking the employee about the matter until three months after the other witnesses had been given a chance to give their accounts, in the view of the tribunal, does cause prejudice to the employee.[20]The tribunal considers a significant feature of the delay in this context therefore relates to the issue of whether there has been a reasonable investigation. A delayed investigation, particularly when there is no explanation for that delay, will not usually be a reasonable investigation. When the two parts of that investigation – the employer’s evidence, and the employee’s response - are then separated by a further three months, again with no explanation, the tribunal cannot regard such an investigation as being a reasonable one.[21]Finally, there is another aspect to delay, in terms of the reasonableness of the decision to dismiss. Whilst an argument at first instance in Cruden that , by analogy with waiver and affirmation in contract law, an employer who delays dismissal can lose the right to contend that a dismissal was fair was held by the EAT to have been rightfully rejected, this tribunal does consider that delay is highly relevant to any consideration of whether, regardless of any effect upon the reasonableness of the investigation, to dismiss for the conduct in question was a reasonable response. The fact that the conduct was known of, at possibly the highest level, and certainly at Committee level, at or around the time that it occurred, but not acted upon is, in the[22]That is not to be unduly critical of Alan Cash, in particular, who, the tribunal considers was doing a difficult job in difficult circumstances, with little support. The delay, particularly the last period from November to January was and remains wholly unexplained. It was, the tribunal considers a highly relevant factor to which any reasonable employer would have addressed his mind. At the very least, some explanation for the delay may have mitigated the position. The alternative, of course, is the claimant’s suggestion that the real explanation is that the charges for which he was ultimately dismissed were an afterthought to replace the more serious allegation of touting, which the respondent had been forced to abandon. The tribunal does not so find, though it must be a possibility, but the lack of enquiry into the reasons for the delay in informing the claimant of the allegation from early November to late January is serious flaw in Alan Cash’s decision making, which was not corrected on appeal. 22. One further aspect of reasonableness also comes into play, and that is consistency. Whilst each case is to be judged on its own acts, an employer is under as duty to act consistently, and it will be hard for an employer to claim that it was fair to dismiss one employee for a particular form of misconduct, when another, guilty of the same misconduct , is not dismissed. The evidence , before the respondent, at the disciplinary hearing, and the appeal , was both Danny Walker and John Askey had used bad language towards other members of staff. Danny Walker admitted he had sworn at the claimant, and alleged that John Askey had sworn at him. Neither was dismissed, or , up until July 2016, even disciplined.[23]The respondent’s further disclosure during the adjournment raises further issues. The management committee meeting minutes of 7 October 2015 (pages 15 and 16 of the supplemental bundle) make reference to “an incident” between the manager , presumably John Askey, and Danny Walker, the groundsman, before a match with Boreham. The action noted is for Stewart Joseph, who is the Welfare Officer, to arrange a meeting with them both. No further evidence was called or is available about what this entry refers to, but in the absence of any further evidence or explanation, the tribunal considers that it most likely refers to an incident between John Askey and Danny Walker, which necessitated the involvement of Stewart Joseph. Quite what occurred is unclear, but Danny Walker’s evidence to the disciplinary hearing was that John Askey had sworn at him in the past.[24]The letter to John Askey dated 1 July 2016 disclosed by the respondent during the adjournment, but without any further evidence being heard about it, is of note. It is dated 1 July 2016, and relates, on its face, to an incident on 23 February[25]It is hard not to see this as further evidence of a degree of inconsistency of treatment which adds further to the unfairness of the treatment of the claimant.[26]There was, of course, an appeal to Colin Garlick. This was capable of remedying any defects in the previous procedure, and could make a previously unfair dismissal a fair one (see Taylor v OCS Group Ltd [2006] ICR 1602 ). Whilst the tribunal should not over-focus on the distinction between re-hearing and review type appeals, this was clearly the latter type. Colin Garlick too, the tribunal accepts , did his honest best , and did at least make some enquiries into two aspects raised before him. He checked and was entitled to accept , as the tribunal has done, that the decision was Alan Cash’s alone. His enquiries into Stewart Joseph’s awareness of the allegation, however, did not go anywhere far enough. What he did not do, and indeed no – one from the respondent has, was ascertain why the allegation was only added and put to the claimant for the first time on 21 January 2016. All this was despite the claimant’s solicitors and his trade union representative making it crystal clear that this period of delay was a major flaw in the process. Furthermore, whilst Colin Garlick addressed the inconsistency between the claimant’s treatment and that of Danny Walker for the same incident, he did not address the position in relation to John Askey, which was expressly raised.[27]Thus, for those reasons, the tribunal is quite satisfied that the decision to dismiss, whilst genuinely and honestly taken by Alan Cash, was an unreasonable one, and the dismissal was unfair. (ii)Contribution.[28]Mr Fletcher, in his submissions, argues in the alternative, for a reduction in any compensatory award on the basis that the claimant contributed to his own dismissal, by as much as 100%, or, if the tribunal does not so find, some lesser per centage. In support of that contention he relies upon the claimant’s conduct on 23 July 2015. In support of that he refers the tribunal to the claimant’s history with the club, and invites it to find that the claimant was guilty of such conduct, and, accordingly, has grounds for making a reduction for contribution.[29]A number of difficulties arise for the respondent in advancing this argument. The first, and paramount, is that the respondent has adduced no direct evidence of the incident on 23 July. No witnesses actually present have given evidence to the[30]That , in effect, is sufficient to dispose of the respondent’s contentions, but, in the alternative, in any event, had the tribunal been satisfied that the claimant had in fact been guilty of the conduct alleged, it would then have been obliged to consider whether to make any reduction, this being a discretionary matter, and not an automatic consequence of a finding that the claimant had been guilty of such conduct. The tribunal would not have exercised its discretion to make any reduction for contribution, even if satisfied of the claimant’s conduct as alleged on the day in question. The test in s. 123(6) of the ERA is whether it would be “just and equitable” to make any reduction. In this case the main factor militating against the making of any such reduction is again the delay between the incident and the dismissal. Whilst there may be cases where it would be just and equitable to reduce compensation on the basis of the employee’s conduct, notwithstanding that the conduct in question is somewhat stale, such as where that conduct had been deliberately concealed by the employee, or had only recently come to the attention of the employer for good reason, neither of those situations pertain here.[31]In the tribunal’s view the respondent’s failure to take action within the initial three month period after the incident, and then for a further 3 months, would not make it just and equitable to reduce any award, even if the conduct in question was established. Given that there are also issues as to consistency of treatment in terms of the fairness of the dismissal, especially in the light of what seems to have been a yet further instance of similar conduct by John Askey, these are further grounds for making no reduction for contribution. Finally, whilst appreciating that substitution, at the stage of assessing reasonableness of the decision to dismiss, is prohibited, no such restriction applies in the exercise of its discretion for these purposes, and the tribunal would also be heavily influenced by the accounts given in the disciplinary hearing by the “victims”, and their apparent lack of concern at the incident at the time. Whilst doubtless , if proven, conduct not to be applauded, it is hard not to view it as a minor flare up, a “hissy fit” as it was described, and, if nipped in the bud, not deserving of summary dismissal.[32]The respondent argues in the further alternative for a reduction to the compensatory award on the basis of Polkey . The law on Polkey reductions is well established, and was comprehensively reviewed by the judgment of the EAT in Software 2000 Ltd v Andrews [2007]IRLR 568. That judgment has more recently been reviewed by the EAT in Grayson v Paycare (A Company Ltd by Guarantee) UKEAT/0248/15/DA . In his judgment Kerr J., reviewed the judgment of Elias J (as he then was) in that case, and (stripping it of its now redundant references to the repealed Dispute Resolution regulations and associated legislation), he summarises the principles to be applied when considering whether to make a Polkey reduction, as follows, at para. 21 of his judgment: “21. Elias J's summary provides a useful reminder that Tribunals need to disentangle in their minds distinct questions that may need to be addressed in particular cases. The following are possible formulations of the questions that may arise in particular cases:(1) How long the employee would have continued working for the employer, but for the dismissal; this is the question that in ordinary cases must be answered on the balance of probabilities, to assess loss;(2) Whether either party has adduced evidence entitling the Tribunal to conclude (the burden of satisfying the Tribunal being on the employer) that the employee would or might have ceased to be employed in any event had fair procedures been followed;(3) Is the evidence relied on to support a Polkey reduction in compensation too unreliable or vague to be useful, and is the exercise of seeking to reconstruct what would have happened too uncertain to ground any sensible prediction based on it?(4) If not, what is the chance - not the probability or likelihood - that that would have happened at a time in the future, and if so at what point in the future might that chance have produced the relevant event, namely the end of the employment?(5) Has the employer satisfied the Tribunal that there was a chance of the employment terminating in the future, and if so how great or small was that chance? This is commonly expressed as a percentage.1(6) Has the employer satisfied the Tribunal that employment would have continued, but only for a limited fixed period, whether or not for reasons wholly unrelated to the circumstances relating to the dismissal itself? 22. In redundancy cases where dismissal is unfair due to inadequate or no consultation, a compensatory award may sometimes comprise loss of earnings in full for a certain period, followed by loss of earnings reduced by a Polkey percentage for a further consecutive period thereafter. This may be the just result where the first period (of recovery in full) represents the time subsequent to the[33]The second basis upon which a Polkey reduction is sought is that there would have been a fair dismissal at the end of the 2015/16 season, for the reasons set out in paragraphs 20(b)(i) to (iii) of Mr Fletcher’s written submissions. The first of these is that the claimant’s relationship with the players had deteriorated, making his position untenable. The only evidence of this was the witness statements from Danny Rowe and Byron Jenkins, whose evidence was not tested before the tribunal, as they were not called. The point is made on behalf of the claimant, however, that Mr Blower in evidence said that the claimant’s continued employment would have been a matter for John Askey, the manager, to decide. There is no evidence from him before the tribunal. The tribunal is not persuaded on the evidence presented that it is likely that the claimant’s employment would have been fairly terminated at the end of the season for that reason.[34]Similarly, the two remaining grounds advanced by the respondent are that the claimant’s employment would have been terminated either because he would have been likely to have committed some further acts of misconduct, or he would have pursued an argument that there was a racially motivated conspiracy to oust him, which would have made his position untenable.[35]The tribunal finds both these propositions groundless. Firstly, in order to succeed, the respondent would have to show that the claimant would have been fairly dismissed at some point in the future. In terms of the evidence for this, the respondent relies upon his previous conduct. On examination, however, if one discounts the allegation that he had touted a player in October 2015, which was expressly dropped as an allegation, as at the time of his dismissal for the alleged incident in July 2015 there was no further proven act of misconduct between July 2015 and March 2016. That is not to say that there would not have been allegations, but it is actual, not alleged, conduct that matters. This is, in the tribunal’s view, pure speculation. In relation to Mr Blower, the tribunal does not see where, until his suspension and disciplinary proceedings, the claimant had previously alleged that Mr Blower was involved in some racially motivated conspiracy . True it is that he made reference in his grievance in January 2016 (page 204 of the Bundle) to Mr Blower making a racist reference to the club’s owners. He also complained that there was a protracted campaign by Mr Blower to bring about the termination of his employment , but he makes no other reference to race in this document. In the grievance meeting on 12 January 2016 , there is no further mention of race. In short, whilst the claimant clearly, by January 2016, when he had been suspended and charged (only, at that time) with touting, and issues had previously been raised about his dealings with the funds from an event, believed and stated that he thought that Mr Blower was treating him unfairly, wanting him out, he did not do so, in terms, that Mr Blower’s actions were racially motivated. Be that as it may, the fact that an employee genuinely believes that a senior officer of his employer is against him , and wants him out, does not mean that his employment will end in the near future, or, more particularly, will end fairly. The suggestion therefore that the claimant’s employment was likely to end, at the end of the 2016/16 , and end fairly because of the alleged breakdown in the relationship between the two men is, again, the tribunal considers a highly speculative one, particularly given Mr Blower’s evidence that in matters relating to the assistant manager post, John Askey’s views were highly important. No evidence from John Askey has been put before the tribunal. Thus the tribunal is not persuaded that this can, or should, form the basis for any Polkey reduction.[36]That does not mean, however, that the tribunal will not have to make some assessment of the period for which the claimant should be awarded compensation for loss of earnings. That is an issue of loss, and goes to what it would be just and equitable to award. That is not, however, the same as making a specific Polkey reduction, which the tribunal declines to do. Breach of Contract – the notice pay claim.[37]The tribunal turns now to the breach of contract claim. The claimant was dismissed without notice, so the burden is upon the respondent to prove, on the balance of probabilities, as a matter of fact, that the claimant was guilty of conduct which was of such a nature that it entitled the respondent to dismiss the claimant for that conduct, that it did so, and that it did not lose its entitlement to do so.[38]The first issue, then, is a factual one – what did the claimant do? The problem for the respondent is that it has called no witness who was involved in the incident on 23 July 2015. Thus, in terms of first hand evidence, the tribunal has the evidence of the claimant only. The tribunal has also, of course, the account given by[39]The claimant’s account in evidence to the tribunal was largely to dispute the statements put to him. He denied the allegations, but in his account prepared for the meeting on 3 February 2016 (pages 157 to 158 of the Bundle) he did say that Danny Walker approached him about the cones, and swore at him, whereupon he accepted that he responded by swearing, and using “the F word”. He went on to say that the use of such language was commonplace at the club and amongst footballers generally.[40]In terms of other accounts, the tribunal notes that in the disciplinary hearing, Danny Walker (page 184 of the Bundle) agreed to a suggestion by the claimant’s representative that these were part and parcel of a football club environment. He also agreed that they were both in the wrong, both were swearing. He also made reference to John Askey (“the gaffer”) swearing on another occasion.[41]It is true to say that Gerard Coyne , Lewis Stanton and Jamie Ryan gave accounts in the disciplinary hearing which said that the claimant had used bad language, and this was maintained . An unexplained element of the case, however, is how the allegation, when formally made, referred to the claimant using the “C” word, when none of the witnesses had ever said that he did.[42]The position that the tribunal is left with, however, is that none of these witnesses were called before the tribunal. It may well have been reasonable for the respondent to accept their evidence, but that does not mean that the tribunal would have done so, especially as it would have been subject to cross – examination by the claimant’s solicitor. That is no disrespect to Richard Jobson, the claimant’s PFA representative, who did question them in the disciplinary hearing, but who is not a qualified lawyer. The tribunal is faced therefore with the claimant denying the more serious, and challenged, evidence about what he said to Gerard Coyne and Lewis Stanton, but there being a measure of agreement between his account and Danny Walker’s about their interaction. In these circumstances the issue is finely balanced. The claimant may have used the language alleged, or he may not. The burden of proving that he did lies on the respondent. The tribunal considers that the respondent has not satisfied that burden, and has not proved, on a balance of probabilities, particularly by calling first hand evidence, that he did so behave.[43]There are, however, further issues. If the tribunal were wrong, and the respondent has established the factual basis for its summary dismissal, there remain legal issues as to whether the respondent was entitled to dismiss for that conduct when it did. That raises two issues, firstly, was the conduct serious enough to warrant summary dismissal. The initial question is whether there has been a breach of any express term. The tribunal cannot see that there has, even if the factual allegations were proven. Clause 11.1(a) is relied upon, but the tribunal cannot see the conduct falling within any of these express provisions, even (v) , as for their to be[44]The test therefore is the contractual test for gross misconduct, as set out in the common law rules for determining what degree of misconduct (the epithet gross adds nothing – Wilson v Brett [1843] 11 M and W 113, Court of Exchequer per Rolfe B) would justify a summary dismissal. The law on this topic has been considered by the Court of Appeal in Briscoe v Lubrizol Ltd. [2002] IRLR 607 . In his judgment Ward L J considered the earlier caselaw, and in particular Neary and Neary v Dean of Westminster [1999] IRLR 288 . He says, at para. 108 of his judgment in the Court of Appeal: “To draw a distinction between gross misconduct and repudiatory conduct evincing an intention no longer to be bound by the contract is in my judgment to make a distinction without a real difference. It may be more common in employment cases to deal with gross misconduct, but that is essentially a form of repudiatory conduct. The two propositions appear to have been so treated by Lord Jauncey of Tullichettle in Neary and Neary v Dean of Westminster [1999] IRLR 288 when he said at paragraph 20: ‘The question of whether there has been a repudiatory breach of that duty justifying instant dismissal must now be addressed. Whether misconduct justifies summary dismissal of a servant is a question of fact.’ The question turns upon what degree of misconduct justifies summary dismissal or amounts to repudiation.In Laws v London Chronicle (Indicator Newspapers) Ltd 1959 I WLR 698 700 – 701 Lord Evershed MR analysed the authorities and stated that the proper conclusion to be drawn from them was this: ‘.. since a contract of service is but an example of contracts in general, so that the general law of contract would be applicable, it follows that the question must be – if summary dismissal is claimed to be just viable – whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.’ Ward L J continues to cite from this passage, which is concerned with disobedience, and single acts of that nature, before resuming his citation of Lord Jauncey as follows: ‘There are no doubt other cases which could be cited on the matter, but the above four cases demonstrate clearly that conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment’ Ward L J ends this passage of his judgment with: “I take that to be the test.”[45]He then goes on to consider whether the test is a subjective or an objective one – i.e does the employee have to intend to renunciate the contract, or is it enough[46]The claimant in support of the argument that the conduct did not warrant summary dismissal relies also on the fact that neither Danny Walker nor John Askey were dismissed for the same conduct. Whilst consistency may be relevant to fairness, it is not of itself relevant to whether there has been fundamental breach. It is, however, a legitimate test to apply in evaluating whether the alleged conduct was sufficiently serious to merit summary dismissal to see if the respondent always treated it as such. In this instance it clearly did not, as evidenced by the later treatment of John Askey for similar conduct. The tribunal also notes the term “trust and confidence which is inherent in the particular contract of employment” in the judgment cited above. It is legitimate , the tribunal considers therefore to have regard to the particular contract, which in this case is assistant manager at a lower league football club. Language which may constitute such misconduct in, say, a dress shop , may be less likely to be so considered in this context. The tribunal would not hold that this conduct, if proven, was of such a character as to entitle the respondent to dismiss without notice.[47]The claimant’s final argument, in the alternative, on this topic is that in any event the respondent, in waiting 6 months before raising the allegation and then not dismissing until 14 March 2016, waived any breach , or affirmed the contract. The principles of affirmation for an employer are just the same as for an employee seeking to argue constructive dismissal (see, for example Cook v MSHK Ltd [2009] IRLR 838 see paras. 52 to 60). Each must act with sufficient speed in response to the breach, once aware of it, or they will be taken to have affirmed the contract. In this instance, the evidence is that the respondent , as an entity, at a senior level , was aware of the breach as long ago as late July 2015. Even if that is wrong, it knew by 10 November 2015. No action was taken until 21 January 2016. As discussed above in a different context there is no explanation for either of those periods of delay, the second period being particularly important. The claimant was not even suspended in relation to the second, but older, allegation. The tribunal considers that by this delay, in full knowledge of the facts, the respondent did affirm the contract.[48]Mr Fletcher for the respondent, in answer to this point, relies upon clause 19.4 of the contract which provides: “The failure by either party to require strict performance by the other party of any obligation under this Agreement or failure to exercise any of its rights under the Agreement shall not waive or diminish that party’s rights to require strict performance of such obligation or to exercise such rights.”[49]This he submits, precludes any finding of waiver, or presumably, affirmation on the basis of the alleged delay between the conduct entitling the respondent to dismiss without notice , and the dismissal. The tribunal disagrees. In the case of Tele2 International v Post Office Limited [2009] EWCA Civ 9 the Court of Appeal considered the effect of a similarly worded (if anything more relevantly worded in the context of waiver or affirmation) clause, and held that it was not to prevent such an affirmation or waiver taking place (see paras. 49 to 56 of the judgment of Aikens LJ).[50]Having succeeded in establishing that he was wrongfully dismissed, the final question is what is the notice period to which the claimant was entitled ? The claimant contends for a total of 6 months, the respondent for 3. The basis of the claimant’s contention is Clause 11.5(a) (A) of the claimant’s contract which provides: “(A) In the event that the Club wishes to terminate this Agreement, otherwise than under clause 11.1 to 11.4, it must: (a) give written notice of termination to the Assistant Manager with three months notice period; and(b) pay to the Assistant Manager an amount of compensation equal to the 3 months of his salary less deductions for income tax and National Insurance Contributions (as appropriate) , and not being subject to any duty of the Assistant Manager to mitigate any loss which the Assistant Manager may have suffered as a result of the termination of this Agreement pursuant to this Clause 11.5 , such amount to be paid monthly in line with Schedule 1(a) over a 3 month period.” The claimant submits that this clause means that the claimant is entitled to both three months’ notice, and a payment the equivalent of three months’ notice. The claimant places much reliance upon the use of the word “and” at the end of sub - clause (a). The respondent contends that the clause does not bear that construction, and is for only three months’ notice.[51]This is an issue of construction. The clause is, with all due respect to the draftsman, not well worded. It appears to be a slightly clumsy attempt at a pay in lieu of notice (“PILON”) provision, whereby a contract can be terminated either by notice, or by making a payment the equivalent of the notice period. Such terms are usually better expressed, and make it clear that it is the making of the payment, usually in one lump sum, but permissible by instalments, that operates to terminate the contract. This is in lieu of notice being given. Such payments in lieu are not usually subject to mitigation, as they are the means by which the employer brings the contract to a premature end, the benefit to the employee being receipt of the PILON payment, without reduction for mitigation. This clause appears to conflate the two concepts of notice and pay in lieu of notice. Whilst it could have been much better worded, the tribunal cannot construe the clause as the claimant seeks. To read it as he argues is to deprive it of commercial sense. Whilst the word “and” would normally connote some additional entitlement, the tribunal considers the only sensible way to read the word is “or”. The clue, the tribunal considers is in the use of the word “the” in the term in sub – clause (b) “equal to the 3 months of his salary..”. Without that word, the argument that this is an additional entitlement to the three months notice referred to in the preceding sub – clause would have greater force, but it is clear to the tribunal that this is a reference to the same three month notice period referred to in sub – clause (a) which precedes it. The claimant’s entitlement was therefore to 3 months’ notice (which, be it noted, is how the matter was put in the claimant’s Remedy Statement) .
Remedy.
[52]The parties have not expressly addressed remedy, and there is no counter statement of loss, so the tribunal does not know whether any of the figures given by the claimant are disputed as not being accurate. The tribunal accordingly does not at this stage make any awards, but will given an indication of the awards that it is contemplating making on the basis of the figures put forward by the claimant. The parties can thereafter either agree remedy, or seek a determination of any award (or partial determination, if they agree other aspects) in due course. For the present, therefore, the tribunal’s provisional views are as follows. i)Breach of Contract.[53]The first, and simplest, item of remedy is the notice period. The claimant, it is now clear, was entitled to three months notice. He is therefore entitled to the net pay he would have earned during that notice period, subject to any mitigation or benefits. From his remedy statement (pages 28 to 30 of the Bundle) his net weekly wage was £261.11. 3 months , 13 weeks , would produce a figure of £3,394.43. Benefits, however, fall to be deducted, and the claimant received : Initial payment – 11 May 2016£31.33 Thereafter £73.10 per week to the end of the notice period 14 June 2016 6 weeks in total £438.60 Total benefits received £469.90 Damages for breach of contract £3,394.43 less £469.90£2,924.53 ii)Unfair dismissal.[54]The first entitlement will be to a basic award. As the claimant was employed for two full years at age at termination was 43 , with both full years of service over the age of 41, giving him an entitlement to 3 weeks, his basic award is therefore: 3 x £288.46£865.38[55]The compensatory award requires the tribunal to make an assessment of the appropriate period over which to award the claimant loss of earnings. The first part of the period, of course, is taken up by the notice pay award, which takes the claimant up to 14 June 2016. The respondent’s case is that the tribunal should not make any award beyond the end of the claimant’s contract, which was due for renewal on 1 July , two weeks after the end of the notice period. The tribunal notes that the DWP permitted the claimant to restrict his job seeking activities to the type of role he had held with the respondent , or previously, until 19 July 2016. Thereafter, he like all other jobseekers , could not be so restrictive, and would be expected actively to pursue any other job for which he was fit.[56]Whilst the tribunal has rejected the respondent’s contentions in relation to any Polkey reduction on the basis that the employment was likely to end at a certain[57]This is not an easy assessment to make. The claimant’s employment history with the respondent, even allowing for the fact that he may well have been unduly scrutinised , was not entirely smooth (given his written warning for a very serious incident in November 2014), and the tribunal can perhaps take judicial notice of the fact that the transition from player to manager in professional football at any level is not always a successful one, and this was the claimant’s first managerial role. Further, the salary the claimant was earning at the time of his dismissal , £15,000 per annum, is hardly, with all due respect to him a substantial one, and one would have thought the claimant had an earning capacity, perhaps outside football, but possibly still associated with the sport, or sport in general, that was higher than that. One has to question how much longer he himself would have stayed at the Club in those circumstances. He had, when all is considered, only been in his position with the respondent for less than three years. The tribunal therefore does not see that his continued employment was a given, and was probably somewhat precarious, as is probably the norm for the industry. Doing the best it can, therefore, the tribunal considers that the award of loss of earnings should cover the period from the date of dismissal to 6 months after it, i.e to mid September 2016. The first three months, of course, are accounted for by the notice period, and hence the award would be for a further three months loss of earnings. Thus, the claimant would be entitled to an award of: 13 x £261.11£3,394.43 This would, of course, be subject to recoupment , for the period of 15 June 2016 to 14 September 2016, the previous period being accounted for by the notice pay award (to which recoupment does not apply, and hence the benefits fall to be deducted as mitigation). Additionally, the tribunal would make an award for loss of statutory rights. This has been put in the remedy statement at £1000, which the tribunal, subject to further argument, would consider too high. Given the claimant’s weekly wage of £288.46, the tribunal would consider £600 a more appropriate figure.[58]There is a suggestion in the remedy statement that the tribunal should apply an uplift for failure to follow the ACAS Code of Practice. The tribunal has not heard any argument on this . At first blush it is hard to see how such an uplift can be sought – the respondent followed a procedure, at both dismissal and appeal stages, even if it unfairly dismissed the claimant in the end. The tribunal notes, however, that in the claimant’s submissions, reference is made (para. 2.19) to breaches of the ACAS Code of Practice in relation to delay, reasonable investigation, and suspension. It is unclear whether the claimant is seeking to argue that these (which, of course, have been relevant to the fairness of the dismissal) are relied upon as also entitling the[59]There may be other elements – it is noted that the loss of employer’s pension contributions is claimed, but unclear if this is agreed as a recoverable head of loss, and if so, how it should be quantified. Further, if tribunal fees have been paid, they may be sought as well. For the present, it is hoped that the above assists the parties to resolve remedy by agreement, but if they cannot, a further hearing will be held to determine any outstanding issues. Employment Judge Holmes Dated: 24 April 2017