Mr I Griffiths v Olympic Scaffold & Tower Hire Ltd: 2402365/2019

EMPLOYMENT TRIBUNALS

Case No 2402365/2019

Between

Mr I GriffithsClaimant

Olympic Scaffold & Tower Hire LtdRespondent

Before

Employment Judge Horne

Date 8 July 2019

JUDGMENT

[2]The respondent is ordered to pay the claimant a basic award of £258.00 and a compensatory award of £86.00.

[3]Compensation was assessed on the basis that: 3.1. Had the respondent acted fairly, the claimant would inevitably have been dismissed on 19 February 2019. 3.2. It is just and equitable to reduce the claimant’s basic and compensatory awards by 80% to reflect the claimant’s contributory conduct. _____________________________ Employment Judge Horne 8 July 2019 Case No. 2402365/2019 2 SENT TO THE PARTIES ON 31 July 2019 FOR THE TRIBUNAL OFFICE Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request in writing within 14 days of the date on which this judgment is sent to the parties. If written reasons are provided, they will be entered on the tribunal’s online register which is visible to internet searches. Case No. 2402365/2019 3 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2402365/2019 Name of case(s): Mr I Griffiths v Olympic Scaffold & Tower Hire Ltd The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 31 July 2019 "the calculation day" is: 1 August 2019 "the stipulated rate of interest" is: 8% MR I STOCKTON For the Employment Tribunal Office Case No. 2402365/2019 4 INTEREST ON TRIBUNAL AWARDS GUIDANCE NOTE

[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.gov.uk/government/publications/employment-tribunal-hearings-judgment-guide-t426 If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.

[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”.

[3]The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged.

[4]“Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet).

[5]Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal.

[6]‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No. 2402365/2019 1 EMPLOYMENT TRIBUNALS Claimant: Mr I Griffiths Respondent: Olympic Scaffold & Tower Hire Ltd Heard at: Liverpool On: 8 July 2019 Before:

REASONS

[1]By a claim form presented on 9 March 2019, the claimant raised a single complaint of unfair dismissal. Everyone accepted that he been employed by the respondent and had acquired the right not to be unfairly dismissed.

[2]By the time of the hearing it was clear that the claimant was no longer the respondent’s employee. There was, however, a fundamental dispute about how the relationship had terminated.

[3]The respondent contended that the claimant had resigned on 12 February 2019 by behaving truculently towards the director (Mr Woodruff) and walking off site. The claimant denied that his actions amounted to a resignation. He contended that he was still an employee when he telephoned the office the next day, only to be dismissed over the telephone by the respondent’s managing director (Mr Irvine) and Mr Woodruff.

[4]If the claimant was dismissed, I had to go on to decide whether the dismissal was fair or unfair. Here, the questions for me to consider were: 4.1. Could the respondent prove the sole or principal reason for the dismissal? Case No. 2402365/2019 2 4.2. Was that reason one which related to the claimant’s conduct? 4.3. If so, did the respondent act reasonably or unreasonably in treating that reason as sufficient to dismiss the claimant?

[5]If the alleged dismissal was unfair, two further issues would arise in relation to the claimant’s remedy. The parties agreed that these issues should be determined at the same time as the question of whether the claimant had been dismissed or not. The issues were: 5.1. “the Polkey issue” – should any compensatory award be reduced on the ground that, had the respondent acted fairly, the claimant would or might have been dismissed in any event? 5.2. Contributory fault – would it be just and equitable to reduce the claimant’s basic and compensatory awards to reflect the claimant’s alleged contributory conduct?

Evidence

[6]I heard oral evidence from the claimant on his own behalf. The respondent called Mr Woodruff, Miss McNiven and Mr Dally. They all confirmed the truth of written statements they had made and answered questions. In addition, the respondent relied on the written statement of Mr Irvine without calling him to give oral evidence.

[7]The documentary evidence was presented to me in a range of formats. I considered evidence in a blue file submitted by the respondent and in a blue folder from the claimant. I heard audio recordings submitted by the claimant. I also looked at some printed photographs and one digital photograph on Mr Woodruff’s phone.

[8]This is a convenient opportunity for me to record what I made of the witnesses who gave evidence and the one who did not. 8.1. First of all Mr Irvine. I was not able to attach any significant weight to his statement because its contents were controversial and the claimant had not had the opportunity to test his evidence by questioning him. But the claimant wanted me to go further. He pointed to an alleged discrepancy between the contents of Mr Irvine’s statement (on the one hand) and a comment he made during a covertly-recorded conversation (on the other). According to the witness statement, Mr Irvine had been present in the office during the incident on 12 February 2019 and had observed the claimant’s behaviour towards Mr Woodruff. Over the telephone on 13 February 2019, he said to the claimant, “I’ll get the man who was there”. The claimant suggested that, in the telephone conversation, Mr Irvine was impliedly confessing to not having been present at the time of the incident. Such a confession would, of course, be a direct contradiction of the evidence in his witness statement. The claimant suggested that this contradiction should lead me to should draw conclusions adverse to the respondent. I saw no inconsistency between the two statements. It seemed to me, in the context of the 13 February 2019 telephone call, that, by saying “I’ll get the person who was there”, Mr Irvine was referring to the Mr Woodruff, who was the person to whom the claimant had been speaking directly. Mr Irvine was not admitting to having been absent during the incident. Case No. 2402365/2019 3 8.2. The claimant gave evidence in a believable manner. I did, however, have to take into account that, on any version of events he had behaved in an extremely heated manner on 12 February 2019. He had thrown job notes into the air, said “you don’t have a clue” several times and walked off site. I also found that the photographs were convincing evidence that the claimant had caused damage to the door, reinforcing my opinion that he was extremely agitated that morning. In my view, his memory of what happened is likely to have been clouded by his loss of temper. 8.3. Mr Woodruff I thought gave evidence in a relatively straightforward way. The claimant contended otherwise. Again, his attack on the witness’s reliability was launched from the contents of a secretly-recorded telephone conversation. The claimant compared the very brief summary of the 12 February 2019 incident that Mr Woodruff gave over the telephone with the more detailed account contained in Mr Woodruff’s witness statement. In particular, the claimant observed, Mr Woodruff did not mention any damage to the door when speaking to the claimant over the telephone. The claimant then posed the rhetorical question: why, if Mr Woodruff was telling the truth about the damage to the door, did he not mention it over the telephone, just after it had occurred? In my opinion there is a simple answer to that question. The photographs clearly show that the door had been damaged by the time of the telephone conversation. When speaking on the telephone, Mr Woodruff was trying to avoid being drawn on what had happened the previous day. He did not know he was being recorded and he did not know that this was his chance to place on record the full version of events. Nothing about this telephone call affects the reliability of Mr Woodruff’s evidence. 8.4. Mr Griffiths made a forceful point about the witness statements of Mr Dally and Ms McNiven. They all appeared to have been written by the same person. I had to be careful to avoid accepting the contents of those statement at face value. When it came to their oral answers to questions, however, I found the two witnesses to be straightforward and spontaneous. For example, when Mr Dally was asked how he noticed that the claimant had slammed the window down, he just said “from what I heard”. It seemed unlikely to me that Mr Dally was regurgitating lines supplied to him by somebody else: his answer seemed to come naturally from his own memory.

Facts

[9]The respondent is a scaffolding company with about 17 employees. One of its main clients is known as Evolve. The company’s Managing Director is John Irvine. Another director is Mr Chris Woodruff.

[10]The respondent operates from a yard that is fenced with a double gate into a car park. It has an office and a canteen. The office is separated from the yard by a window which is capable of being slid open and shut, and it is through this window that generally the scaffolders and members of the labouring teams speak to people inside the office. The teams of labourers each have their own tools which they are expected to buy themselves, although they store them on site, and they keep their own boots on site on shelves by the canteen.

[11]The claimant was employed by the respondent as a labourer. He had two periods of employment with the respondent and this claim is concerned with the second. It began on September 2015 and came to an end in February 2019. It Case No. 2402365/2019 4 is, however, worth briefly mentioning the earlier period of employment. The start of that earlier period roughly coincided with Mr Woodruff joining the business as a scaffolder. Over the years they got to know each other well.

[12]Just before the claimant’s employment ended, he achieved the PASMA qualification in scaffolding.

[13]On one occasion, not long before the events giving rise to this claim, a scaffold tower that the respondent had built for Evolve was found to have been made incorrectly. The necessary equipment for the scaffold had been recorded on the job notes, but it had not all been used. A series of meetings followed during which it was explained to the scaffold teams that scaffolds should be perfect and exactly match what was on the job note.

[14]Another event that occurred shortly before the main events of this claim is that the respondent decided to make a significant reduction in headcount. Four people were dismissed for redundancy, including an employee called Paul. He had less than two years’ service and was therefore relatively cheap to make redundant.

[15]On 12 February 2019 the claimant and Mr Tom Dally, Lead Scaffolder, were instructed to build a four-foot-high scaffold tower with a cantilever design. Mr Dally had the qualifications and experience to lead that team. The claimant had the requisite qualifications and experience work on that tower as part of the team, but not to act as leader. Mr Woodruff briefed Mr Dally on the job that morning.

[16]A little later, the wagon for the job was parked up against the office and Mr Dally was loading it. The claimant looked at the job notes and formed the belief that the equipment for that particular job was incorrect. It listed equipment that, in his opinion, was correct for a six-foot tower, but not suitable for the tower to be constructed, which was only four feet high. He took the job notes to the office, went to the window and voiced his concern to Mr Woodruff. Having heard the claimant’s concern, Mr Woodruff attempted to reassure him by giving the same briefing that he had given to Mr Dally. Essentially his point was that the materials were sufficient for that design because it was a cantilever design, and the claimant did not have the qualifications to tell him otherwise.

[17]The claimant became angry at this point. He closed the window with enough force to make people in the office take notice. Mr Dally, who was still loading the wagon, heard the sound of slamming. The claimant threw his job notes into the air. Mr Woodruff opened the window and asked the claimant what he was doing. The gist of the claimant’s reply was, “You haven’t got a clue”. There is a dispute about the precise words that he uttered. The respondent’s case is that his actual words were, “You haven’t got a fucking clue”, but the claimant denies swearing. In my view nothing particularly turns on this dispute. What matters is that the claimant was sufficiently agitated to speak in an insolent and disrespectful tone to his employer.

[18]Having spoken to Mr Woodruff, the claimant went directly to the canteen to pick up some belongings. On his way in, he struck the canteen door violently. I do not know whether he punched the door or hit it in some other way. The blow was enough to make a fist-sized dent in the middle of the door. It was also enough to open the door so forcefully that it banged against an inside plaster wall, damaging both the wall and the base of the door. Case No. 2402365/2019 5

[19]Whilst in the canteen the claimant shouted outside to Mr Woodruff who, by this time, had left the office and was standing outside the canteen. The claimant again repeated the words “you haven’t got a clue” and I find he did use the words “I’m going”. He was not told to leave. He walked out of the canteen holding some, but not all, of his belongings. Mr Woodruff followed him at a distance of about two or three metres and kept following him until the claimant had walked out of the gate. At this time, Mr Woodruff felt somewhat intimidated, but thought it important to keep an eye on the claimant in case he was tempted to damage anything else. Mr Woodruff then secured the gate and returned to the office. He took two sets of photographs, both showing the damage to the canteen door.

[20]Later that day, the claimant's tools were dropped off by another member of staff.

[21]The following day, 13 September 2019, the claimant telephoned Mr Irvine and secretly recorded the call. He put it to Mr Irvine that he had been sacked and asked for the reason why. Mr Irvine replied, “You’ve walked out and that’s the end of it”. When the claimant said, “You weren’t there”, Mr Irvine said, “I’ll get the person who was there”.

[22]There was then another telephone call between the claimant and Mr Woodruff. Mr Woodruff told the claimant that he had walked out and that he had taken that as being the claimant's resignation. He did not at that stage mention the damage to the door, but, as I have found, that was because Mr Woodruff did not want to be drawn into giving a detailed account.

[23]Later on 13 February 2019, Paul, one of the redundant scaffolders, was re-hired.

Relevant law

[24]Section 95(1) of the Employment Rights Act 1996 (“ERA”) provides, so far as is relevant: (1) For the purposes of this Part an employee is dismissed by his employer if … and … only if- (a) the contract under which he is employed is terminated by the employer (whether with or without notice)…

[25]Unless there are special circumstances (such as words said in the heat of the moment), an employer is normally entitled to take unambiguous words of resignation at face value: Martin v. Yeoman Aggregates Ltd

[1983] ICR 314

[26]Where words of dismissal or resignation are ambiguous, the test is what a reasonable listener, knowing the circumstances, would have made of them. Would they have interpreted them as a dismissal? In directing myself in this way I accept the formulation of the test set out in Harvey on Industrial Relations and Employment Law at paragraph D1-248.

[27]Section 98 of ERA provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it…(b) relates to the conduct of the employee… Case No. 2402365/2019 6 … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.

[28]The reason for dismissal is the set of facts known to the employer, or the set of beliefs held by him, that causes him to dismiss the employee: Abernethy v, Mott, Hay and Anderson

[1974] ICR 323

, CA.

[29]Where the reason for dismissal is the employee’s misconduct, it is helpful to ask whether the employer had a genuine belief in misconduct, whether that belief was based on reasonable grounds, whether the employer carried out a reasonable investigation and whether the sanction of dismissal was within the range of reasonable responses: British Home Stores Ltd v. Burchell

[1978] IRLR 379

, Iceland Frozen Foods Ltd v. Jones

[1983] ICR 17

[30]In applying the test of reasonableness, the tribunal must not substitute its own view for that of the employer. It is only where the employer’s decision is so unreasonable as to fall outside the range of reasonable responses that the tribunal can interfere. This proposition is just as true when it comes to examining the employer’s investigation as it is for the assessment of the decision itself: J Sainsbury plc v. Hitt

[2003] ICR 111

[31]It can be gross misconduct for an employee to refuse to obey a direct management instruction. According to UCATT v. Brain

[1981] ICR 542

, “the primary factor which falls to be considered by the reasonable employer deciding whether to dismiss the recalcitrant employee is the question, ‘is the employee acting reasonably or could he be acting unreasonably in refusing to obey my instructions?’”

[32]The ACAS Code of Practice 1 – Disciplinary and Grievance Procedures provides, at paragraphs 4, 9 and 10: 4. …whenever a disciplinary … process is being followed it is important to deal with issues fairly. There are a number of elements to this: ...• Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. … 9.If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally Case No. 2402365/2019 7 be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. 10.The notification should also give details of the time and venue for the disciplinary meeting and advise the employee of their right to be accompanied at the meeting.

[33]Dismissal without following procedures may nonetheless be fair, but only where the employer reasonably takes the view that procedures would be futile: Polkey v. A E Dayton Services Ltd

[1987] UKHL 8

. Where an employer has failed to follow procedures, and the tribunal is considering whether the dismissal is fair or unfair, one question that the tribunal must not ask itself is whether the claimant would still have been dismissed had the procedures been followed. However, that question is relevant in determining any compensatory award under section 123(1) of ERA: Polkey v. A E Dayton Services Ltd

[1988] ICR 142

. The tribunal is required to speculate as to what would, or might, have happened had the employer acted fairly, unless the evidence in this regard is so scant it can effectively be disregarded: Software 2000 Ltd v. Andrews

[2007] IRLR 568

[34]Where the tribunal considers that the conduct of an unfairly dismissed employee, before the dismissal, was such that it would be just and equitable to reduce the basic award of compensation to any extent, section 122(2) of ERA requires the tribunal to reduce the basic award accordingly.

[35]Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant, section 123(6) of ERA requires the tribunal to reduce the compensatory award by such amount as is just and equitable having regard to that finding.

[36]To justify a reduction in the basic or compensatory awards, contributory conduct must be culpable or blameworthy and must have caused or contributed to the dismissal: Nelson v. BBC No.2

[1980] ICR 110

, CA. The tribunal must in addition be satisfied that it is just and equitable to reduce the award.

[37]In deciding upon a contributory fault reduction, the tribunal must consider only the conduct of the employee and not that of the employer.

[38]The amount of a reduction is a matter of discretion for the tribunal. Guidance as to the exercise of such discretion was given in Hollier v. Plysu Ltd

[1983] IRLR 260

. Contribution should be assessed broadly. Without fettering the tribunal’s discretion, the EAT suggested the following categories: wholly to blame (100%), largely to blame (75%), equally to blame (50%) and slightly to blame (25%). Conclusions Was the claimant dismissed?

Conclusions

[39]My first task is to decide whether or not the claimant used clear and unambiguous words of resignation. In my view, he did not. The claimant’s words were, “I’m going” and “You haven’t got a clue” (with or without the added swear word). In my view those words were ambiguous. Amongst the different meanings that could be attributed to those remarks, the two most likely are: 39.1. “I have no respect for your opinion about this task and I’m refusing to do it”; and 39.2. “I’ve got no respect for you and I’m resigning.” Case No. 2402365/2019 8

[40]In order to decide between these two possibilities, one has to look at the surrounding circumstances. In my view, the damage to the door does not really help to determine which of the two possibilities it was. It just shows that the claimant was very angry at the time. It does not mean that he had no intention of coming back once he had cooled down. The fact that the claimant walked off site without authorisation is, again, consistent with both possibilities.

[41]What tips the balance in my view is the fact that the claimant left important belongings behind. He left his tools on site and only got them back when they were later returned to him by a colleague. A reasonable observer would wonder why he did not take his tools if he was walking out once and for all.

[42]That means that the claimant was still an employee the following day when he telephoned the respondent. His employment contract did not survive the telephone call. Mr Irvine said, “You’ve walked off and that’s the end of it”. That on its own would be clear enough to be a dismissal. But if the status of the claimant’s contract were still in doubt, Mr Woodruff settled it by telling him that he was being treated as having resigned. That also was an unambiguous dismissal: it was clearly telling the claimant that his employment was at an end. Was the dismissal fair or unfair?

[43]The reasons for the claimant’s dismissal were the beliefs held by Mr Irvine and Mr Woodruff that the claimant had walked off site, behaved in an unacceptable manner, caused damage to the respondent’s property, and had refused to carry out a reasonable instruction, and had by those actions resigned. Those were all reasons that related to the claimant's conduct.

[44]I must therefore decide whether the respondent acted reasonably or unreasonably in treating those reasons as sufficient to dismiss the claimant.

[45]I take into account that the respondent is a small employer. In the circumstances where the claimant walked off site and behaved as badly as he had, it would be open to a reasonable employer to decide not to invite the claimant to a face-to-face meeting. Mr Woodruff had found himself in an intimidating situation, and he would not have wanted to risk a repeat of it. But that would not stop Mr Woodruff from trying to find out the claimant's version of events. Any reasonable employer would have tried to ascertain whether or not the claimant wished to return to work, what his explanation was for his behaviour, whether he had cooled down, and whether he was going to promise to mend his ways. The options open to Mr Woodruff would have included emailing the claimant or telephoning him – anything to get his side of the story without actually bringing him into the physical proximity of the canteen building, the vehicles and the car park.

[46]This was not a case where the respondent consciously made a decision not to follow any procedures on the ground that whatever happened the outcome would inevitably be the same. What happened was that Mr Irvine and Mr Woodruff mistakenly took the claimant's behaviour as being a resignation when it was not. That is not the same as consciously deciding to dispense with procedures. Overall, I have decided that the respondent acted unreasonably in treating the claimant’s conduct as a sufficient reason to dismiss him. Remedy Case No. 2402365/2019 9

Remedy

[47]I have to decide how to assess the claimant’s remedy. The first thing I have asked myself is what would have happened had the respondent adopted a fair procedure. In order to answer that question I have imagined a scenario in which, instead of dismissing the claimant over the telephone, Mr Woodruff asked the claimant if he was intending to return to work, suspended him, and sought an explanation by e-mail. In my view, this process would have taken about a week. I have no doubt that, at the end of it, Mr Woodruff would have taken the view that the claimant’s behaviour was so unacceptable that he should inevitably be dismissed for gross misconduct. In coming to this view, I have taken into account the claimant's version, as put forward to the Tribunal, is one that he did not cause the damage to the door. Mr Woodruff would have rejected the claimant’s account and would have been right to do so. I have also borne in mind the claimant’s tone in conversation on the telephone on 13 February 2019. It was completely unapologetic, even before Mr Irvine dismissed him. Mr Woodruff would quite reasonably have taken the claimant to be lacking in remorse and would have had no confidence that the claimant would not behave in a similar way in future if he had been invited back to work.

[48]The claimant will therefore receive no compensatory award except for one week’s pay to compensate him for the time it would have taken to carry out a fair procedure.

[49]The final matter which I have taken into consideration is whether or not the basic and compensatory awards should be reduced to reflect the claimant’s contributory conduct. In my view there should be a further reduction. The claimant’s behaviour in the yard was completely disrespectful. He was refusing the acknowledge the authority of the employer who employed him; he was refusing to do what he was instructed to do, he caused damage and I find genuinely did intimidate Mr Woodruff. Having behaved in this way he deserves a high degree of blame for his dismissal. In my view it is just and equitable to make a reduction of 80% to his basic and compensatory awards.