Mr D Silberman v Peninsula Business Services Ltd: 2402608/2020
EMPLOYMENT TRIBUNALS
Case No 2402608/2020
Between
Mr D SilbermanClaimantPeninsula Business Services LtdRespondent
Before
Employment Judge HolbrookIn person for claimantMr M Alam (instructed by Solicitor) for respondentDate 2 July 2024
JUDGMENT
[1]The claimant’s application to amend his ET1 to introduce claims of disability discrimination is refused.[2]The applications by each party to strike out the other’s case are also refused, as are their respective applications for a costs order and a preparation time order. JUDGMENT having been sent to the parties on 26 April 2021 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Discussion and Conclusions
[1]On 14 December 2020, the claimant in these proceedings, David Silberman, applied to amend the ET1 which he had presented to the Tribunal on 30 March 2020 to include claim(s) for disability discrimination pursuant to the Equality Act 2010.[2]I refused Mr Silberman’s application at a preliminary hearing on 22 April 2021 (when I also refused reciprocal applications made by the parties to strike out each other’s cases and for costs/preparation time orders). I had heard oral submissions in relation to these matters from Mr Silberman and from the respondent’s solicitor, Mr Alam. In addition, I was referred to various documents in an agreed 168-page hearing bundle. The hearing was conducted remotely, using the CVP video hearings platform.[3]I gave judgment (with oral reasons) at the conclusion of the preliminary hearing and, on 23 April, Mr Silberman emailed the Tribunal to request that written reasons be provided as well. Unfortunately, it appears that this request initially went astray, and I have only recently been made aware of it. I therefore regret the resulting delay in the production of these written reasons.
FACTS
[4]Mr Silberman presented a claim to the Tribunal on 30 March 2020, having contacted ACAS on 16 March and an early conciliation certificate having been issued on 27 March. The claim was initially identified by the Tribunal as a claim for breach of contract (wrongful dismissal) and unlawful deductions from wages. However, at a hearing on 16 November 2020, Employment Judge Ross granted an application (which had been made on 4 November) for Mr Silberman to amend his ET1 to include a claim that he was automatically unfairly dismissed on the grounds of exercising the right to be represented at a grievance and at a grievance appeal hearing. In fact, the Employment Judge held that Mr Silberman did not need permission to amend his claim in this way, as he was merely seeking to clarify a claim that had already been pleaded.[5]Employment Judge Ross went on to make case management orders at the hearing on 16 November with a view to the case being dealt with at a two-day final hearing in May 2021. In doing so, she discussed with the parties the legal issues arising from the above claims (and these were set out in an Annex to the judge’s case management note). She also provided the following brief summary of the case: “The claimant was employed by the respondent from 15 July 2019 as an HR Documentation Consultant. The claimant presented a grievance which was heard on 3 January 2020. The grievance was not upheld. The claimant was given a grievance outcome letter on 14 January 2020. On 24 January 2020 the claimant resigned. The respondent accepted his resignation and agreed a period of eight weeks’ notice, to end on 19 March 2020. Meanwhile the claimant appealed against his grievance outcome and a grievance appeal hearing was heard on 29 January 2020. On 4 February 2021 the claimant was summarily dismissed. The letter of dismissal said that the claimant had been discussing the grievance matters with his colleagues and commenting on management/seniors in a derogatory manner. The reason for dismissal was given as, “Your disregard for adhering to management instructions and your refusal to carry out your duties as informed”. The claimant disputes the respondent’s version of events. He says the reason he had been discussing the grievance matter with colleague(s) was because he was considering asking one of them to accompany him to grievance or appeal meeting. He says it would be unjust to prevent him mentioning the grievance to them at all as it would prevent him asking a colleague to accompany him.”[6]There was no discussion at the 16 November hearing of the fact that Mr Silberman may have a disability or that he might wish to make a claim for disability discrimination. Nor was there any reference to this in the ET1.[7]Nevertheless, by letter dated 14 December 2020, Mr Silberman applied to amend his ET1 to make claims for direct and indirect disability discrimination; discrimination arising from disability; and for failure to comply with the statutory duty to make reasonable adjustments. Mr Silberman explained that he was seeking permission to amend his ET1 in this way following legal advice which he had received on 10 December.[8]In his application for permission to amend, Mr Silberman stated that at all material times he has suffered from Crohn’s disease, migraines and “an undiagnosed potential heart condition”. He explained how he considers each of these impairments has a substantial and long-term adverse effect on his ability to carry out normal dayto-day activities and he summarised his complaints against the respondent in the following way: “[A]t the beginning of my employment the requirement to log all bathroom breaks amounts to a provision, criterion or practice (PCP) which indirectly discriminated against me and persons with my disability and put me and persons with my disability at a substantial disadvantage because the nature of Crohn's disease primary symptom is frequent and urgent need to use the bathroom. This would mean that I would be using the bathroom considerably more than my co-workers who did not have Crohn's disease and would put me at a substantial and manifestly unfair disadvantage when the tracking of bathroom times was used for any reason. The Respondent will not be able to show that the PCP was a proportionate means of achieving a legitimate aim. The particular disadvantage I was placed at was I would be at an unfair disadvantage when the tracking of bathroom times was used for any material reason, when compared to employees who do not share my disability. Additionally, I suffered significant embarrassment at having my bathroom times monitored and had an underlying concern that this information may be used, particularly as the Respondent had never explained the reasons why this was tracked and what the information would be used for. The detriment I suffered as a consequence was significant embarrassment as I knew my bathroom times were being compared with my co-workers who did not share my disability and unfair treatment for using the bathroom more frequently than my co-workers. This is evidenced at page 115-116 of the bundle where it was stated "Upper management sent emails to all staff in error listing EVERY employee's length of toilet break in a day, with an instruction to speak to those employees who were deemed to go over the 'acceptable' length of time away from the phone". This is clear evidence that the tracked bathroom breaks were being used to take action against offending employees which I would clearly have been identified due to the nature of my disability. I believe that the tracking of bathroom times and their use for speaking to offending employees who were identified as having spent too much time away from the phone put me at a substantial disadvantage at work compared to those not suffering from my disability because I would clearly be put at a manifest and unfair disadvantage when the same principles were applied to my employment.”[9]At the hearing on 22 April 2021, Mr Silberman explained that it was not until 28 March 2020 that he had become aware that the respondent had been monitoring its employees’ bathroom breaks. When asked why he had not sought to amend his ET1 before mid-December, he stated that he had experienced significant ill-health during the summer of 2020. Mr Silberman also stated that he had initially been unaware of the possibility that a claim for disability discrimination might arise from the facts of this case. He had commenced a law course in September 2020 and had asked one of his lecturers for advice about making a claim for unfair dismissal. He had not asked the lecturer about the possibility of making a discrimination claim, however, and had not realised that he could make such a claim until he consulted a solicitor on 10 December.[10]The respondent opposed Mr Silberman’s application for permission to amend on the grounds that the claims for disability discrimination were out of time and, in any event, had no reasonable prospect of success and were vexatious.
DISCUSSION AND CONCLUSIONS
[11]The Tribunal has a discretion to permit a claimant to amend their claim at any time following presentation of the ET1. Possible amendments range from minor corrections or additions to the introduction of entirely new claims. The key principle to be observed in the exercise of this discretion is that the Tribunal must have regard to all the circumstances, and in particular to any injustice or hardship which would result from the amendment or a refusal to make it. Relevant factors for the Tribunal to have regard to include the nature of the amendment, the applicability of any time limits and the timing and manner of the application. But this is neither an exhaustive list of relevant factors, nor a checklist to be ticked off: the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application.[12]In terms of the nature of the proposed amendment which Mr Silberman seeks to make to his original ET1, it is plain that this involves the introduction of wholly new claim(s) – under the Equality Act 2010 – which are based on entirely different facts and circumstances from those which relate to Mr Silberman’s existing claims. This is certainly not a re-labelling exercise, or a mere clarification of an existing claim. The ET1 did not mention any of the matters referred to by Mr Silberman in his application for permission to amend. Nor did it indicate the possibility of a claim for disability discrimination. Indeed, I note that Mr Silberman ticked the box at section 12.1 of the form to indicate that he does not have a disability.[13]As well as exploring the nature of the proposed amendment, it is necessary to consider the application of any relevant statutory time limits. Section 123 of the 2010 Act provides that a claim for disability discrimination must be presented to the Tribunal within the period of three months starting with the date of the act to which the complaint relates, or within such other period as the Tribunal thinks just and equitable.
Background
[14]In the present case, the alleged act(s) of discrimination cannot postdate Mr Silberman’s dismissal on 4 February 2020. The claim(s) for disability discrimination were thus already significantly out of time when Mr Silberman applied for permission to amend his ET1 on 14 December, and I do not think that it would have been just and equitable to extend time to permit such claim(s) to be presented on that date. I note that Mr Silberman was unaware of the facts which give rise to his proposed claim(s) until late March 2020, and also that he was unwell for much of the summer. However, I also note that, by September 2020, he had recovered sufficiently to embark upon a law course (and to discuss his employment tribunal claim with one of his lecturers). He was also able to correspond with the respondent about compliance with the Tribunal’s case management orders. By mid-November, Mr Silberman was well enough to attend the hearing before Employment Judge Ross and to engage in a detailed discussion about the case. I therefore do not accept that Mr Silberman had been unable to seek advice from a solicitor about his case prior to 10 December or that the length of the delay in bringing the claim(s) before the Tribunal was reasonable. Moreover, given that Mr Silberman’s work for the respondent had involved the drafting of employment contracts, policies and procedures, it is surprising that such advice was required for him to realise that there was the possibility of making a claim for disability discrimination.[15]Although the Tribunal has power to permit an amendment even where that amendment introduces a new claim which is out of time, it would not be appropriate to do so in this case. I consider that Mr Silberman could, and should, have raised the possibility of making a claim for disability discrimination sooner, and certainly by no later than the hearing before Employment Judge Ross on 16 November 2020.[16]The fact that the effect of the proposed amendment would be to introduce new claim(s), based on additional facts, is also relevant when considering the balance of injustice and hardship in allowing or refusing the application to amend. Allowing it would mean altering significantly the scope and nature of these proceedings. It would require the respondent to gather and present additional documentary and witness evidence, including evidence from witnesses who have not previously been alerted to the fact that they may need to give evidence in these proceedings. The events in question occurred many months ago now and the recollection of those witnesses may be impaired by the passage of time. In addition, there would probably be significant additional cost to the respondent in collating and disclosing the necessary additional evidence and in attending a significantly longer final hearing. I accept that refusing Mr Silberman permission to amend his ET1 will deprive him of the opportunity to pursue any claim for disability discrimination. However, taking all of the above matters into account, I consider that the balance of injustice and hardship favours refusing Mr Silberman’s application to amend.[17]Turning to the parties’ reciprocal applications to strike out each other’s case, I note that, by letter dated 17 February 2021, the respondent applied for a strike out on the ground that Mr Silberman’s claim is vexatious, and that his conduct during these proceedings has been scandalous, unreasonable and vexatious. As evidence of this, the respondent relied on the fact that Mr Silberman has twice applied for permission to amend, on the manner in which he did so, and on his alleged unreasonable conduct in relation to compliance with case management orders. A further ground for the application was added at the hearing on 22 April: that Mr Silberman’s existing claims have no reasonable prospect of success. Mr Silberman responded by making a strike out application of his own on 22 February. The stated grounds for this were that the response to his claims itself has no reasonable prospect of success, that the respondent has repeatedly breached case management orders, and that the applications made to the Tribunal by the respondent were unreasonable.[18]It is clear that any assessment of the relative merits of the parties’ cases will depend upon a careful consideration of the evidence about the events on which they rely. I have not heard that evidence, and the appropriate forum for it to be explored is at the final hearing of the claims. Mr Silberman’s first application to amend his ET1 was successful – so he can hardly be criticised for making it – and whilst his second application has now been refused, that fact provides no justification for striking out his existing claims. As far as the parties’ conduct generally is concerned, it is plain that their relationship has become increasingly strained during the course of these proceedings, and there has been particular disagreement between them about how and when witness statements should be exchanged. However, I have seen nothing to indicate that the conduct of either party has been so poor as to justify striking out their case.[19]The parties’ grounds for seeking orders for costs against each other are essentially the same as above. However, I am not satisfied that either party has established that the other has acted vexatiously, abusively, disruptively or otherwise unreasonably such as to justify the making of a costs order (in favour of the respondent) or a preparation time order (in favour of Mr Silberman) pursuant to rule 76 of the Tribunal’s procedural rules.
Evidence
[20]Ms Knighton and Ms Foy gave oral evidence with reference to the response form and correspondence between the parties. Law Wrongful Dismissal
Law
[21]Wrongful dismissal is a common law action based on breach of contract. It does not take into account the reasonableness of the parties conduct but simply whether the contract has been breached. If the respondent has breached the contract and dismissed then the claimant will succeed in his claim for wrongful dismissal.[22]Alternatively, if the claimant has committed a repudiatory breach of the contract, then the respondent is entitled to summarily dismiss. Automatic unfair dismissal on the grounds of exercising the right to be represented at a grievance and grievance appeal hearing[23]The relevant law is contained within s10 and s12(3) of the Employment Relations Act 1999 (ERA). Section 10 Right to be accompanied.(1) This section applies where a worker — (a) is required or invited by his employer to attend a disciplinary or grievance hearing, and (b) reasonably requests to be accompanied at the hearing. (2A) Where this section applies, the employer must permit the worker to be accompanied at the hearing by one companion who — (a) is chosen by the worker; and (b) is within subsection (3). (2B) The employer must permit the worker’s companion to — (a) address the hearing in order to do any or all of the following — (i) put the worker’s case; (ii) sum up that case; (iii) respond on the worker’s behalf to any view expressed at the hearing; (b) confer with the worker during the hearing. (2C) Subsection (2B) does not require the employer to permit the worker’s companion to — (a) answer questions on behalf of the worker; (b) address the hearing if the worker indicates at it that he does not wish his companion to do so; or (c) use the powers conferred by that subsection in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it. (3) A person is within this subsection if he is — (a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992, (b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or (c) another of the employer’s workers. (4) If — (a) a worker has a right under this section to be accompanied at a hearing, (b) his chosen companion will not be available at the time proposed for the hearing by the employer, and (c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker. Section 12 Detriment and dismissal.(2) A worker who is dismissed shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he – (a) exercised or sought to exercise the right under section 10(2A), (2B)] or (4), or (b) accompanied or sought to accompany another worker (whether of the same employer or not) pursuant to a request under that section.[24]This provides statutory protection to a claimant making a reasonable request to be accompanied at grievance hearings. The claimant would be unfairly dismissed if this right was the respondent’s reason for dismissal.
Findings of Fact
[25]Having considered the evidence, I made the following findings of fact. Where a conflict of evidence arose, I resolved the same on the balance of probabilities. I have taken into account my assessment of the credibility of witnesses and the consistency of their evidence with the surrounding facts.[26]The findings of fact relevant to those issues which have been determined are as follows:-26.1 The claimant was employed by the respondent from 15 July 2019, that he resigned from his position on 24 January 2020 which was accepted on 28 January 2020, and he was summarily dismissed on 4 February 2020.26.2 On 20 December 2019 the claimant raised a grievance alleging lack of support from a senior staff member Molly Costello and that she spoke to him in a rude and belittling way.26.3 On 3 January 2020 at the grievance hearing before Ms Karen Knighton, Team Leader, the claimant indicated that he wished a colleague, Kaitlin Crowley to attend as a witness to events. Ms Knighton confirmed that Ms Crowley would be spoken to in the course of the investigation. Mr Silberman was offered the right to be accompanied at the hearing and he indicated that he was happy to proceed alone. During the course of the meeting it was made clear that Ms Knighton would be speaking to individuals as part of her investigation.26.4 I find that after the grievance hearing Mr Silberman approached witnesses and discussed his case with them because Ms Knighton’s evidence of email correspondence on 6 January 2020 raised it and necessitated a warning to Mr Silberman regarding such conduct. Mr Silberman in his evidence accepts that he did speak to individuals to inform them that they would be witnesses.26.5 I find that Mr Silberman’s conversation with the witness Ms Crowley was more than a simple request to attend as supported by Ms Knighton’s investigation evidence, where it is alleged that he coached Ms Crowley to put forward information that she knew to be incorrect. Mr Silberman disputed that he did, instead encouraging the witness to put forward an accurate account. I don’t seek to evaluate the conversation or context for the purposes of this hearing other than to determine that I find this was a discussion about Mr Silberman’s grievance, over and above a mere request for support at a hearing.26.6 I find that Mr Silberman was fully aware of the respondent’s concern that he had discussed his grievance with others and was on notice not to do so from the evidence of Ms Knighton and her grievance outcome letter of 14 January 2020.26.7 The respondent found the grievance unsubstantiated and Mr Silberman indicated on 15 January 2020 that he wished to appeal this decision and denied that he coached a witness but instead spoke to her about events and encouraged her to clarify them to the investigation. The claimant also stated that he had not received the notes of the grievance hearing.26.8 I find that Mr Silberman continued to discuss his grievance with others following his initial grievance hearing because Ms Foy in her evidence stated that Mr Silberman volunteered to her that he had raised a grievance and that she would have known about the detail of it had she been to Delia’s leaving meal.26.9 I find that discussing his grievance with colleagues, the nature of which taken at its simplest level being a stated lack of support from a senior member of staff, could be construed as speaking ill of an individual and management.26.10 I find that these discussions directly impacted on those individuals being spoken to and could be overheard by others as from Mr Silberman’s evidence.26.11 I find that Mr Silberman resigned from his employment on 24 January 2020 (confirmed as accepted by the respondent on 28 January 2020) and following a period of eight weeks' notice Mr Silberman’s employment would end on 19 March 2020.26.12 On 29 January 2020 the respondent sent a letter confirming Mr Silberman’s salary had increased by £1,500 effective from 1 January 2020.26.13 At Mr Silberman’s grievance appeal on 29 January 2020, before Anna Byrne, Employment Regional Manager Midlands Mr Silberman attended unaccompanied. I find that he was again informed of his right to be accompanied at the hearing and was content to proceed. This is supported by Ms Knighton’s and Mr Silberman’s evidence. Mr Silberman again explained his wish for Ms Crowley to attend the original grievance as a witness, but she didn’t want to attend. Mr Silberman denied coaching Ms Crowley in discussions with her about his grievance. Mr Silberman reiterated his concerns that he had not been supported by a senior colleague and been spoken to in a rude manner. For the reasons set out at para 22.5, above, I find that Mr Silberman had discussed his grievance with Ms Crowley.26.14 I find that on 4 February 2020 Mr Silberman raised the issue of a typographical error with members of staff and that he found it amusing as supported by the evidence of Mr Silberman, Ms Foy and Ms Knighton. I accept the evidence of Ms Foy and Ms Knighton that this was upsetting to the junior member of staff who had forwarded the email.26.15 Later that day a meeting took place between Mr Silberman and Ms Knighton. In respect of whether Mr Silberman accepted discussing his grievance in the kitchen earlier that day, there is a conflict in his evidence and I accept that elicited in cross examination, that he did discuss his grievance with colleagues. I find that the issue concerning the typographical error was discussed at this meeting and Mr Silberman offered no explanation as to his behaviour in the kitchen that day. This is in accordance with the evidence of Ms Knighton and partially accepted, in respect of offering no explanation by, Mr Silberman.26.16 I find that Mr Silberman was told on the 4 February 2020 that he would be paid in lieu as accepted by the parties.26.17 On 7 February 2020 the respondent sent Mr Silberman a letter confirming his dismissal for his “...disregard for adhering to management instructions and your refusal to carry out your duties as informed.” The letter stated that during the course of the meeting on 4 February 2020 Mr Silberman had been asked whether he had been discussing his grievance with colleagues and making remarks about Ms Costello and “You responded that you had, despite being fully aware that I had requested on several occasions, that you do not." It was also alleged that Mr Silberman had been making derogatory comments against management. I find that this referred to the matters discussed with Mr Silberman in the meeting of 4 February 2020 from the evidence of Ms Knighton. Claimant’s Submissions[27]Mr Silberman sought to refer to cases part way through his submissions, which had not been provided to the court or respondent. He was invited to address the evidence and proceeded on that basis.[28]Mr Silberman submitted that it was unfair of the respondent stop him referring to the grievance in its entirety when approaching colleagues to accompany him in the grievance procedure. He stated that it was an accepted fact that both parties wanted to call Ms Crowley and it was reasonable that he would make attempts to call someone.[29]Mr Silberman submitted that the respondents have admitted that their repeated instructions not to discuss his grievance, when he was making reasonable attempts to speak to witnesses, was a breach of his statutory right, particularly as the requests took place before the grievance appeal hearing.[30]The respondent indicated that he would receive payment in lieu of notice as confirmed on 4 February 2020.[31]In respect of automatic unfair dismissal Mr Silberman had a right to be accompanied and exercised the right by requesting Ms Crowley to attend. He did have conversations with others, the main purpose being to seek accompaniment and whilst it was right that he should not discuss the substance of the grievance, he had to make the request.[32]Mr Silberman submitted that the respondent had not followed ACAS guidance in respect of the disciplinary procedure in respect of allowing him to be accompanied nor providing him with hearing until he commenced his grievance appeal.[33]He made reference to the Burchell test and that the respondent had not undertaken a reasonable investigation as they didn't follow proper procedure. Mr Silberman was never given an opportunity to defend his actions.[34]Mr Silberman did contest the reason for his dismissal later but was not made aware that he was summarily dismissed until after the event.[35]The respondent did not state his laughing at the typographical error as a reason for dismissal, stating only that he had ignored a management request.[36]Mr Silberman argued that he had established, on the balance of probabilities that his was an automatically unfair dismissal in that he had asked Ms Crowley to attend his grievance procedure and discussing the grievance with his colleague was necessary. Respondent's Submissions[37]Mr Kohanzad referred to the two claims intimated and whilst different are related. Wrongful dismissal related to the primary facts of what happened and automatically unfair was really question of what was in the mind of Mrs Knighton the reason why test – conscious/ unconscious mindset of Mrs Knighton.[38]Did the claimant commit an act of gross misconduct? If not then he succeeded in wrongful dismissal. This was decided on matters of fact, three areas:-• Discussing grievance when told not to• Typographical error• Speaking ill of senior staff[39]Mr Kohanzad submitted that it was accepted mostly by the claimant, that prior to completion of the investigation, he was speaking of his grievance to colleagues. He was warned by email and accepted that he still spoke of his grievance to colleagues. Therefore, he had been given a reasonable management instruction which he breached. Breach of management instruction was in the sphere of gross misconduct.[40]Mr Silberman was asked in evidence, that if he wanted someone to attend could he have just said that. If they'd asked for more information, he could have spoken broadly about it. The claimant did not do that but instead spoke in detail about the grievance.[41]Mr Silberman says he simply asked witnesses to attend, but he did not and was telling lots of people about the grievance, making comments about his boss. It might have been justified comment but wrong to tell everyone about it.[42]Mr Kohanzad stated that Mr Silberman accepted the reason for the grievance not being discussed was that it could prejudice the investigation or lead to division. It is submitted that this was a reasonable management request, he breached it and that is gross misconduct.[43]In respect of whether Mr Silberman was speaking ill of Ms Costello, Mr Kohanzad suggested he of course was which was intrinsic in his grievance. He was telling people and allowing others to overhear it. This was more than providing background or speaking to someone aside. It was submitted that Mr Silberman’s oral evidence was that he told people of the grievance and was careless for others to overhear. It was a reasonable management request which was ignored and he bad mouthed Ms Costello.[44]Mr Kohanzad stated that in respect of the typographical issue Mr Silberman was laughing at Ms Tahla who was dyslexic. No evidence from Ms Foy or the claimant to suggest that everyone was laughing together. Mr Silberman did not say we were all having a laugh at the mistake. It wasn't that type of conversation. Ms Foy unchallenged by claimant about this evidence.[45]Mr Silberman accepted this could be construed as humiliation and thus gross misconduct and the respondent was entitled to dismiss.[46]Mr Kohanzad submitted that in relation to automatic unfair dismissal Mr Silberman told, on his own account, five or six colleagues. The statutory protection is to allow an employee to ask another employee to accompany them. This is narrowly construed so that an individual can't be dismissed for asking a colleague to attend but the claimant went beyond that.[47]Mr Kohanzad represented that Mr Silberman was dismissed for discussing his grievance when told not to, badmouthing his boss and belittling junior staff. He had not come close to establishing that he was simply asking colleagues to attend with him.
Conclusions
[48]In evaluating the evidence and applying the law to the findings of fact I concluded the following:- Did the claimant commit a repudiatory breach of contract entitling the respondent to summarily dismiss him (i.e. without notice) on 4 February 2020? When answering this question, the Tribunal must identify the repudiatory conduct relied upon by the respondent.[49]Yes. The claimant having triggered the grievance process continued to discuss his grievance with potential witnesses and in the hearing of others. He was warned against such conduct on more than one occasion. These discussions centred on his principal reason for raising the grievance, a perceived lack of support from a senior member of staff, and the inherent criticism of her accordingly. This amounted to a failure to adhere to a management instruction and gross misconduct.[50]The claimant found amusement in the typographical error of a junior colleague and whilst he may not have intended to humiliate this individual, caused her upset. He chose not to apologise or explain his actions when this was subsequently put to him. This could amount to gross misconduct.[51]Both instances together amount to a repudiatory breach and entitling the respondent to summarily dismiss the claimant.[52]Having found that the claimant was not wrongfully dismissed I do not consider remedy. Can the claimant, who has less than two years’ service, show facts to suggest on the balance of probabilities that the potential real reason for dismissal was that he sought or exercised the right to be accompanied set out in s10 Employment Relations Act 1999?[53]No. The respondent had informed Mr Silberman of his right to be accompanied at the start of the initial grievance hearing. The claimant’s evidence was that he wanted Ms Crowley to accompany him to this hearing as she had evidence to assist his position. He was told by Ms Knighton that she would speak to this witness. Mr Silberman continued with the hearing without objection or further request for a colleague to be in attendance with him. At the grievance appeal hearing he was again informed of his right to be accompanied and continued without raising issue or requesting anyone else to accompany him.[54]There was no evidence presented that indicated that Mr Silberman’s dismissal related to the exercising of this right. Can the respondent show a reason for dismissal which is not the automatically unfair reason?[55]Yes. The respondent demonstrated that the reason for dismissal was for gross misconduct.[56]May I apologise to the parties for the length of time that this judgement has taken to be delivered which has unfortunately been impacted by my personal circumstances.
Introduction
[1]The 14 day time limit in rule 71 for making an application for reconsideration is extended pursuant to rule 5 so as to enable the application made by the claimant on 31 January 2024 to be considered on its merits.[2]Upon reconsideration, the Judgment of Employment Judge Gianferrari sent to the parties in writing on 20 October 2022 is varied so that paragraph 1 of that judgment is revoked and replaced by the following: The claimant’s claim for wrongful dismissal is well-founded and the respondent is ordered to pay the claimant the sum of £1,667.67 in respect of his four week notice period.[1]Following a preliminary hearing in the Employment Appeal Tribunal (“EAT”) before His Honour Judge Martyn Barklem, the appeal in this case was stayed to give the claimant (the Appellant before the EAT) the opportunity to submit an application for reconsideration within 21 days of the seal date of the EAT order, which was 15 December 2023.[2]That time period expired on 5 January 2024 but the application was in fact made on 31 January 2024.[3]Ordinarily the time limit for an application for reconsideration is 14 days from the date on which the written Judgment is sent out to the parties (rule 71 of the Employment Tribunals Rules of Procedure 2013), but the Tribunal has a general power to extend time under rule 5.[4]Rule 72(3) provides that an application for reconsideration under rule 71 shall be considered by the Employment Judge who made the original decision, where practicable. In this case it was not practicable for Employment Judge Gianferrari to deal with the matter because he no longer sits as an Employment Judge. Under rule 72(3) I have decided to appoint myself to deal with it.[5]The test I have to apply is set out in rule 70: whether it is necessary in the interests of justice to reconsider the judgment, and if it is revoked I have to take it again.[6]The email of 31 January 2024 enclosing the reconsideration application said: “I sincerely apologise for any delay in the submission of this application, owing to my mental health. I am in the process of getting medical evidence should this be needed to support the delay in the application.”[7]I caused a letter to be sent to the parties on 15 February 2024 confirming that I would deal with the reconsideration myself, and saying that I proposed to extend time for the application to be considered on its merits unless the respondent wished to make submissions to the contrary.[8]The respondent replied on 7 March 2024. It did not oppose an extension of time.[9]I therefore decided to extend time so that the reconsideration application could be considered on its merits.[10]I also invited submissions on whether the application ought to be considered at a hearing, or whether it could be dealt with on the papers alone. The claimant initially requested a hearing by email of 1 March 2024. However, by email of 7 March 2024 he said he was happy for it to be decided on the papers. Given the issue and the amount at stake I decided under rule 72(2) that a hearing was not necessary in the interests of justice. I was satisfied that both parties had been given a reasonable opportunity to make further written representations.
Background
[11]This case was heard by Employment Judge Gianferrari on 24 May 2022, and after deliberating in chambers on 10 June 2022 he issued a written Judgment with Reasons which was sent to the parties on 20 October 2022 (“the Gianferrari Judgment”). The unfair dismissal complaint was dismissed. There are no outstanding issues about that.[12]The complaint of breach of contract in relation to notice pay (“wrongful dismissal”) was also dismissed, and the claimant was not awarded any notice pay. However, on appeal it was noted by HHJ Barklem that a finding of fact had been made in paragraph 26.16 of the Gianferrari Judgment to the effect that the claimant had been told when dismissed for gross misconduct on 4 February 2020 that he would be “paid in lieu as accepted by the parties”. The wrongful dismissal claim had been dismissed because Employment Judge Gianferrari found that the claimant had been guilty of gross misconduct which entitled the respondent to dismiss him without notice, but the EAT concluded that the Judge had overlooked the fact that, even so, there had been an agreement that the claimant would be “paid in lieu”.[13]The issue was as to the period for which that was agreed. The claimant had resigned his employment on 24 January 2020 giving eight weeks’ notice of termination meaning that his employment was due to end on 19 March 2020. He contended that the agreement was that he should be paid for the remainder of the notice period expiring on that date.[14]The respondent contended, however, that when it dismissed him and agreed to pay notice it was an agreement only to pay the notice due to him upon termination of his contract by the employer, being four weeks’ notice. Claimant's Application[15]The claimant attached a four page document to his initial email of 31 January 2024. The first six paragraphs repeated comments made by HHJ Barklem in the EAT order, with some minor additional comments and emphasis from the claimant.[16]The claimant then took issue with the findings of fact made in paragraphs 26.4 and 26.5 of the Gianferrari Judgment, and sought to re-open the unfair dismissal complaint. Such matters are outside the scope of the issue under consideration on appeal and I disregarded those paragraphs.[17]There was, therefore, nothing in the initial application which dealt with the point at issue. Respondent’s Submission[18]By a letter of 7 March 2024 the respondent observed that the claimant's application did not address the issue of the length of agreed notice pay. It was asserted that there was no basis on which the claimant could claim to have been owed eight weeks because there was a contractual right to terminate on four weeks’ notice. It said that it had now made a payment to him equivalent to four weeks’ gross pay. Claimant's Response[19]The claimant made further submissions in reply by email of 7 March 2024. He referred to case law relating to the exercise of a clause providing for payment in lieu of notice providing an extract from his contract which contained such a clause in the following terms: “We reserve the contractual right to give pay in lieu of all or any part of the above notice by either party.”
Conclusions
[20]His key point was that the respondent had an obligation to make clear what “payment in lieu” it was proposing to make, and the ambiguity should be construed in his favour as meaning the balance of the notice period that he had given, not the four weeks’ notice period which the respondent would have been required to have given had there been no gross misconduct.[21]The claimant confirmed that he had received £1,666.67 paid by the respondent but further argued for an uplift of 25% because of an unreasonable failure to follow the ACAS Code of Practice on Discipline and Grievance Procedures, meaning there should be a higher award even if I were to agree that the respondent should only pay four weeks’ notice.[22]Finally, the claimant applied for a preparation time order for the whole case, saying that he could provide full details if required. Discussion and
Conclusions
[23]It is necessary to consider the contractual mechanics. The claimant resigned his employment on notice on 24 January 2020 and was thereafter serving a notice period during which he was to remain employed until 19 March 2020.[24]However, that resignation was not effective to terminate his contract because it was superseded by the decision to dismiss him communicated verbally on 4 February 2020 and confirmed in writing by letter of 7 February 2020. As Employment Judge Gianferrari found, on 4 February 2020 the claimant was told that he would be “paid in lieu” of notice.[25]It is plain that this agreement to pay notice was overlooked in the Gianferrari Judgment, and therefore the judgment dismissing the claim for breach of contract must be revoked and replaced by judgment that the claim succeeded. The respondent breached the contractual agreement to pay the claimant in lieu of notice.[26]The issue in dispute between the parties is about the award of damages which should result from that breach. Did the agreement oblige the respondent to pay the balance of the notice period initiated by the claimant's resignation, or only the notice period applicable in the event of dismissal by the employer. That depends upon the interpretation of what the parties verbally agreed on 4 February 2020.[27]The principles of contractual interpretation were summarised by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 as follows: “(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract…. (2) ….. (3) …. (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax…. “[28]Lord Hoffman was dealing with interpretation of a written contract but recognised in paragraph (4) of the extract quoted above that the same principles would apply to “any other utterance”, such as a verbal exchange of the sort found by Employment Judge Gianferrari to have occurred on 4 February 2020.[29]The relevant background here included the following facts:(a) The claimant had resigned, giving notice due to terminate his employment on 19 March 2020;(b) The respondent had grounds for terminating the contract early without any notice, as he had committed gross misconduct;(c) The respondent would have been entitled to have taken no disciplinary action, but simply to have allowed his resignation notice period to have expired, possibly putting him on “garden leave” or exercising its contractual right to pay him in lieu of that notice, but(d) Instead, it chose to take positive action to terminate his contract by dismissing him, meaning that if there had been no gross misconduct he would only have been entitled to four weeks’ notice.[30]Both sides had that background knowledge at the time. Applying the principles summarised above, I am satisfied that a reasonable person having knowledge of that background would have taken the agreement to have meant that the claimant would be paid in respect of the notice period applicable where there is a termination by the employer, not that derived from the resignation by the employee. It was clear that the respondent was terminating employment before the expiry of the claimant's notice period in March. The finding that the claimant was guilty of misconduct gave it the grounds for termination. The dismissal was the mechanism by which the contract was to come to an end, superseding the resignation.[31]A reasonable person in possession of that knowledge would not have found the agreement to “pay in lieu of notice” ambiguous. Its meaning in this context is clear. The claimant’s argument about construing ambiguity against the party responsible for it does not assist him.[32]It therefore follows that the amount the claimant is entitled to as compensation for breach of that contract is four weeks’ gross pay, in the sum of £1,666.67. This has already been paid. Further Matters[33]There are two further matters which I can now address with the assistance of the parties. ACAS Uplift[34]The first is the claimant's claim for an ACAS uplift to the amount I have now awarded. Employment Judge Gianferrari did not consider remedy.[35]The parties should make any further submissions in relation to this within 21 days of this Judgment being issued, and I will then make a determination on whether to uplift the award in respect of wrongful dismissal under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992.[36]I propose to deal with that on the papers unless either side considers that a further hearing would be required. Preparation Time Order[37]The second is the claimant's application for a preparation time order.[38]This application is made within time under rule 77, as the last date for making it is 28 days after the date on which the Judgment finally determining the proceedings is sent to the parties.[39]If the claimant wishes to pursue this application he should provide within 21 days of this Judgment being issued full details of the amount of the time spent, and when it was spent, and the basis on which he contends that the respondent has acted unreasonably in defending the claim or its conduct of the proceedings.[40]The respondent will have 21 days from the date it receives the claimant's preparation time application in which to make any objections.[41]I propose to deal with that application on the papers too unless either side requires a further hearing.[1]Time is extended to 7 May 2024 for the claimant's application of 7 May 2024 for reconsideration of the Judgment sent to the parties on 19 April 2024.[2]That application is refused under rule 72(1) because it has no reasonable prospect of success.[3]The award for breach of contract of £1,667.67 made in the Reconsideration Judgment of April 2024 is uplifted by 10% because of an unreasonable failure by the respondent to follow the ACAS Code of Practice. The respondent is ordered to pay the claimant a further £166.77 under section 207A Trade Union and Labour Relations (Consolidation) Act 1992.[4]The claimant’s application for a preparation time order is dismissed.[1]This case was originally heard by Employment Judge Gianferrari on 24 May 2022 and having deliberated in chambers on 10 June 2022 he issued a Reserved Judgment with Reasons which was sent to the parties on 20 October 2022. He dismissed the unfair dismissal complaint and the claim for wrongful dismissal (breach of contract).[2]The claimant appealed to the Employment Appeal Tribunal. The appeal was stayed in December 2023 to allow the claimant to make an application for reconsideration in relation to the wrongful dismissal complaint.[3]I determined that application in a Judgment on Reconsideration sent to the parties on 19 April 2024, in which I found the wrongful dismissal claim well-founded and ordered the respondent to pay the claimant £1,667.67 in respect of his four week notice period. That amount had in fact already been paid by the respondent.[4]In paragraphs 33-41 of the Reasons with that Judgment I identified that two matters remained outstanding. The first was the question of a possible uplift to the award because of an alleged unreasonable failure to follow the ACAS Code of Practice by the respondent, and the second was an application by the claimant for a preparation time order. Directions were given for written submissions on those two points, which I indicated I would deal with on the papers unless either side requested an oral hearing. Neither side has done so.[5]Prior to making those submissions, however, the claimant applied by email of 7 May 2024 for reconsideration of my Judgment. There are therefore three matters I need to address. Reconsideration Application 7 May 2024[6]The test for reconsideration of a Judgment is whether it is in the interests of justice (rule 70), and it is a power which must be exercised in accordance with the overriding objective in rule 2. Rule 72(1) says that: “If the Tribunal considers that there is no real prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal.”[7]This this context “the Tribunal” means the Tribunal which took the decision in question.[8]I have given the application preliminary consideration. It was made a few days outside the 14 day period required by the Rules, but I am prepared to extend time under rule 5 given the medical difficulties which the claimant is experiencing. They are confirmed in a letter from NHS Psychological Wellbeing Services dated 25 April 2024.[9]The central point made by the application is that the respondent was bringing forward the date of termination resulting from the claimant's resignation, rather than imposing a new dismissal with its own termination date and notice period. Reliance is placed on the wording of the outcome letter of 7 February 2020.[10]However, in my judgment these arguments have no prospect of persuading me to vary or revoke my decision. Seen in context, the termination letter is based on a belief that the claimant had been discussing the grievance matter with colleagues, and making remarks about another colleague, and had been “commenting on management/Seniors in a derogatory manner”. The fourth paragraph of the termination letter refers to a “disregard for adhering to management instructions and [a] refusal to carry out…duties as informed”.[11]In those circumstances, read objectively, the letter was taking a fresh decision to terminate employment, not simply bringing forward the impending termination resulting from resignation. There is no prospect of this point changing my decision that the verbal agreement to pay notice related to the four weeks due upon termination by the employer, not the balance of the 8 weeks’ notice given by the employee.[12]In any event these are matters which the claimant could have raised in his application for reconsideration made in January 2024.[13]The application for reconsideration is therefore refused. ACAS Code Background[14]Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 empowers a Tribunal to increase any award made to the employee by no more than 25%, if it considers it just and equitable in all the circumstances to do so, where:(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies;(b) the employer has failed to comply with that Code in relation to that matter; and(c) that failure was unreasonable.[15]The jurisdictions listed in schedule A2 to the Act include breach of contract claims. In principle, therefore, an uplift is possible in this case.[16]The findings of fact made by Employment Judge Gianferrari in his Reserved Judgment show that the claimant raised a grievance in December 2019, attended a grievance hearing on 3 January 2020, and then discussed his grievance with witnesses. He resigned on 24 January 2020 giving a period of eight weeks’ notice which would terminate on 19 March 2020. He attended a grievance appeal hearing on 29 January 2020. On 4 February 2020 he raised a matter relating to the grievance with members of staff, and was later spoken to by Ms Knighton about discussing the grievance. Employment Judge Gianferrari found as a fact that the claimant offered no explanation for this and that he was told that he would be paid in lieu. Dismissal was confirmed by a letter of 7 February 2020. Claimant’s Submission[17]The claimant submits that there was a failure to follow the provisions of the ACAS Code insofar as it relates to disciplinary proceedings because he was effectively being disciplined for discussing his grievance. There was an informal discussion on 4 February 2020 which should have been arranged as a formal misconduct hearing. He was denied the right to be accompanied. He also submits that there was a failure to deal properly with his grievance. He seeks an uplift of 25%. Respondent’s Submission[18]The respondent’s submission raises a technical point. It says that no uplift is appropriate, arguing that because the amount I ordered to be paid had already been paid, my Judgment should have been a bare declaration with no award which was capable of being uplifted. I do not accept that the Judgment should have been a bare declaration because the amount which I awarded as damages for breach of contract had already been paid. In my judgment that is a matter which goes to enforcement, not to quantum. Alternatively, even if I should have made no order for payment, as opposed to a declaration of the damages resulting from the breach, the Judgment (as the Reasons made clear) expressly did not address the ACAS uplift point. It remains live in principle.[19]Turning to substance, the respondent also submits that the reasons of Employment Judge Gianferrari (paragraph 32) refer to an ACAS uplift regarding the disciplinary procedure, not the grievance. It is suggested that the claimant was not denied any right to be accompanied but admitted the allegations. It is suggested that no uplift is appropriate, or at most 5%.
Conclusions
[20]In relation to the grievance, there was no unreasonable failure to comply with paragraphs 32-45 of the ACAS Code of Practice. The claimant had a meeting to discuss his grievance and the right to be accompanied. He was allowed to appeal the outcome and there was an appeal meeting.[21]In relation to the disciplinary matter, it seems to me that the termination of employment confirmed by the letter of 7 February 2020 was a dismissal for misconduct. The respondent did fail to comply with the requirement of paragraph 9 of the Code to notify the employee of the problem in writing, with the requirement in paragraph 10 to provide notice of the time and venue for the meeting and of the right to be accompanied, and did not provide any right of appeal.[22]In considering if this failure was unreasonable, I take into account that this occurred at a time when the claimant had already resigned and was serving out his notice period. Nevertheless, the decision to terminate employment early by reason of a dismissal for misconduct was a matter to which the ACAS Code of Practice applied, and given the size and resources of this employer, and the fact it provides employment law services to clients, I am satisfied it was unreasonable not to comply with the rudimentary provisions of the ACAS Code of Practice, and in particular by notifying the claimant in writing of the concerns and allowing him the opportunity to be accompanied at the meeting to discuss them. There was ample time to undertake this in the notice period which was already running.
Discussion and Conclusions
[23]Bearing in mind that this is an uplift which applies only to an award for wrongful dismissal, however, I am satisfied that it would be just and equitable to make an uplift of 10%. Preparation Time Order[24]The claimant’s application for a preparation time order was mentioned in an email of 7 March 2024 and confirmed in two emails of 10 May 2024. He provided a copy of Reasons issued by Employment Judge Holbrook for a decision taken at a hearing on 22 April 2021, which included a refusal to make a costs/preparation time order in favour of either side. The claimant also attached a copy of his application of 22 February 2021 which had been refused.[25]The basis of the application now is simply that the defence to the wrongful dismissal claim had no reasonable prospect of success, and that defending the claim knowing there was no basis for doing so amounted to unreasonable conduct which should give rise to a preparation time order. The claimant also relies on some breaches of Case Management Orders which predate the hearing before Employment Judge Holbrook in April 2021. The schedule shows a number of matters for which a claim is made, the total amount being £5,447.13.[26]The respondent has not made any submission opposing this application, but I have considered it on its merits.[27]A preparation time order is an order under rule 75(2) that payment be made to another party in respect of the receiving party’s preparation time while not legally represented. “Preparation time” means time spent by the receiving party, including by any advisers, in working on the case, except for time spent at any final hearing.[28]The power to make a preparation time order arises under rule 76(1)(a) where a party has acted unreasonably in the way the proceedings or part of them have been conducted, or a response has had no reasonable prospect of success.[29]Many of the items on the schedule of costs provided by the claimant are outside the scope of such an order. There is no power to award him anything for attendance at a final hearing, or for any costs incurred in the appeal to the Employment Appeal Tribunal. Costs there are a matter for the EAT.[30]However, the main difficulty for the claimant is that the Gianferrari Tribunal found that he committed a repudiatory breach of contract which entitled the respondent to summarily dismiss him. He succeeded in the wrongful dismissal complaint only on the basis that there was nevertheless an agreement to pay him in lieu of notice, the dispute which I resolved being what that agreement meant in terms of the notice period. As far as substance is concerned, the respondent successfully defended the claimant’s primary allegations:(1) that there were no grounds for summary dismissal and(2) that he was entitled to eight weeks of notice pay.[31]In those circumstances I do not consider that the proceedings were conducted unreasonably by the respondent: it was entitled to defend the two primary contentions of the claimant and did so successfully.[32]As a consequence, my decision is that the application for a preparation time order is dismissed.