Mrs J Caton v Ms F Noreen and Mr M Shafique T/a Daggers Hall Lane Post Office: 2402688/2021
EMPLOYMENT TRIBUNALS
Case No 2402688/2021
Between
Mrs J CatonClaimantMs F Noreen and Mr M Shafique T/a Daggers Hall Lane Post OfficeRespondent
Before
Employment Judge OrdIn person for claimantMr S Goldberg (instructed by Counsel) for respondentDate 18 October 2021
JUDGMENT
The claimant’s complaint of unfair dismissal is well-founded.
REASONS
[1]By a claim form dated 31 March 2021 the claimant brought a claim for unfair dismissal.[2]The issues for the Tribunal are: - What was the reason for the claimant’s dismissal? - If the reason was conduct, did the respondent act reasonably in all the circumstances in treating that conduct as a sufficient reason to dismiss the claimant? In particular:• Did the respondent genuinely believe that the claimant had committed the misconduct?• If so, was this based on reasonable grounds?• At the time the belief was formed, had the respondent carried out a reasonable investigation?• Was the procedure within the band of reasonable responses?• Did the respondent act reasonably in treating the misconduct as sufficient to dismiss the claimant?• Was dismissal within the band of reasonable responses? - If the reason was Some Other Substantial Reason capable of justifying dismissal, in this case a breakdown in trust and confidence, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant?
Evidence
[3]The Tribunal had the following documents before it:a. a 172 paged bundle,b. a 23 paged supplemental bundle, andc. a witness statement bundle[4]It heard oral evidence on oath from:a. Faiza Noreenb. Mohammed Shafique, andc. Jane Caton
Findings of Fact
[5]The respondent is a small family business operated by Mohamed Shafique and Faiza Noreen (who are brother and sister and live together). They ran a small business with Ms Noreen managing the Daggers Lane PO and Mr Shafique managing an off-licence on Church Street. At all material times the claimant worked as a counter clerk at the Daggers Lane PO. Her employment at the PO commenced in April 2017 with a previous post master and was transferred to the respondents in November 2018 when they took over the business.[6]The claimant believed Mr Shafique was in reality her ultimate boss. Her evidence was that Mr Shafique had previously told her that he owned the business and that he was in charge. Therefore, she communicated with him on matters of significance. However, it was Ms Noreen, who the claimant reported to on a day to day basis. The claimant worked with Ms Noreen on a daily basis at Daggers Lane PO. Mr Shafique did not spend much time there, as he was busy with the Church Street off-licence. Consequently, he did not witness much of what happened at Daggers Lane.[7]There was a personality clash between Ms Noreen and the claimant and this resulted in several unpleasant exchanges. Ms Noreen reported to Mr Shafique that the claimant was disrespectful and that she was drunk in work and/or had been drinking at work, although the claimant was never confronted about the alleged drinking. The claimant denies this.[8]The claimant brought flasks into work as she was unable to use the work kitchen facilities due to Covid. Ms Noreen believed there was alcohol in the flasks, although she never questioned the claimant about it.[9]The claimant reported to Mr Shafique that Ms Noreen had been abusive towards her. Specifically on 2 December 2020 there was an incident between Ms Noreen and the claimant, which resulted in the claimant going over to Mr Shafique’s off-licence shop that day to complain.[10]Mr Shafique had arranged a meeting for 16 December 2020, which was an appraisal to discuss pay and issues in the workplace. Mr Shafique suggested that any personality issues could be discussed then, and Ms Noreen would also attend. Mr Shafique promised in the meantime to work at Daggers Lane PO, which he did until 14 December. However, on 15 December he was unable to attend because he needed to be with his son, who had became seriously ill.[11]On 15 December 2020, there was another incident between Ms Noreen and the claimant, which resulted in the claimant leaving work at about 9.30 in the morning and going off sick with stress. She sent a text message to Mr Shafique that morning at 10.58 to apologise for her absence, telling him she had had a panic attack and couldn’t breath. She did not contact Ms Noreen.[12]The claimant had suffered from health issues previously and had sent a text message to Ms Noreen regarding blood tests she was having. She submitted a FIT note covering the dates from 15 December 2020 to 12 January 2020, which recorded “stress at work”, and a second FIT note from 13 January 2021 to 7 February 2021, which recorded “bullying and harassment in the workplace”. A third FIT note covered a period from 5 February 2021, which also said “bullying and harassment at workplace”, and a fourth FIT note ran from 4 March 2021 to 5 April 2021 indicating “stress at work”.[13]Following the 15 December incident, a series of letters were sent to the claimant from the respondents. Ms Noreen sent a letter informing the claimant there was to be an investigatory meeting on 13 January 2021 regarding her behaviour in the workplace and that this would be conducted by Ms Noreen.[14]The claimant did not respond to the invitation to the investigatory as she was off sick and too ill to participate. Ms Noreen prepared a statement for Mr Shafique to consider and Mr Shafique prepared his own statement.[15]On the basis of these statements, Mr Shafique decided to conduct a disciplinary meeting. Ms Noreen sent the claimant an invitation to this meeting along with the statements. It was initially scheduled for 8 February 2021 although, it was postponed until 11 February 2021, as the claimant was ill and unable to attend.[16]Ms Noreen asked the claimant to undertake an occupational health assessment to determine whether she was sufficiently fit to attend a disciplinary meeting. The claimant refused as she had already submitted FIT notes and believed these to be sufficient.[17]The claimant did not attend the disciplinary due to her health issues, although she provided written evidence for Mr Shafique to consider. There were seven allegations to answer, although the seventh was more a statement declaring that the respondents had lost trust and confidence in the claimant. Some of the allegations were historic and the claimant had never been confronted about them at any stage previously, others were minor matters.[18]At the Tribunal hearing the parties agreed that the two most recent allegations were the pertinent ones to concentrate on as being the reasons for the dismissal. These concerned 1) being under the influence of alcohol at work resulting in erratic, rude and aggressive behaviour, and 2) failing to carry out reasonable requests to clean the Post Office counter on 15 December 2020 and smelling of alcohol. The Tribunal has considered the matter on this basis. Allegation 1 Drinking[19]Ms Noreen’s evidence was that she suspected the claimant had been drinking or had been drunk at work over a long period of time and that this resulted in the claimant displaying aggressive and erratic behaviour. She said that the claimant had brought flasks to work and Ms Noreen suspected she was drinking alcohol from them at lunch time. She thought this had happened on three specific dates being 3, 9, and 15 December 2020.[20]Mr Shafique also considered that he had suspected the claimant had been drinking and smelt of alcohol.[21]In her response, the claimant asked why she had not been questioned about this before, and why she had not been asked to show the respondents the contents of her flask. She asked what proof they had of her drinking on 3, 9, 15 December, and why they had not informed her of their concerns before now.[22]She went on to say there was no hard evidence, just an allegation of suspicion. There was no evidence that the claimant had ever been told about this suspicion or that anything regarding the allegation had been raised with her. There was no CCTV footage of aggressive or erratic behaviour. In December Ms Noreen had searched the claimant’s handbag without her permission looking for alcohol but had found nothing.[23]The respondents accepted at the Tribunal hearing that they did not look in the flask, had not previously confronted the claimant about it, and that the allegation was based on suspicion. Allegation 2 Instruction to clean[24]Ms Noreen said that she had given the claimant an instruction to clean the counter on 15 December. Her evidence was that it was quiet and there were no customers in the shop at the time. She believed the claimant had been drinking and she refused to clean the counter. The claimant should have carried out the instruction when asked but instead the claimant’s behaviour was verbally abusive and aggressive and she left her shift.[25]The claimant’s evidence was that it was a busy morning and she was serving customers at the time she was given the instruction. She told Ms Noreen that she would clean after serving. She had never refused to clean and understood that everything had to be sanitised.[26]She said she left because Ms Noreen was aggressive towards her and she started to have a panic attack. This was at about 9.30, being about 15 minutes into her shift. She stopped at a colleague’s house (Jean) nearby because she could not breath.
Outcome
[27]Mr Shafique found the allegations proven and summarily dismissed the claimant for gross misconduct on 19 February 2021. The claimant did not appeal because she said the dismissal letter read to her as though Ms Noreen would hear the appeal and therefore she thought it would be futile. Instead she sought the advice of ACAS.[28]The dismissal letter did not say who the appeal officer would be but that the claimant should contact Ms Noreen if she wished to appeal. Evidence at the Tribunal[29]Mr Shafique said in evidence that there were no issues with the claimant’s work and he did not dispute the fact that she was well-liked by customers. She was given a pay rise in 2019 and she was due to have another pay rise in 2020. He believed she was a very honest person and he gave her a bottle of champagne for Christmas 2020. She had a clean disciplinary record.[30]Until the time of the disciplinary, he had no intension of dismissing the claimant. He said he thought he could simply have a chat with her about her relationship with Ms Noreen and sort things out. He changed his mind when he received her letter of 8 February 2021 in response to the allegations, because he thought she did not want to build her relationship with Ms Noreen.[31]When giving evidence to the Tribunal, the claimant confirmed that there was no alcohol in the flasks and she had not been drinking at work. She was specific about what customers were in the shop at the time of the cleaning instruction and named two of them.
The Law
[32]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 it 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- a) ….. b) Relates to the conduct of the employee 98(4) whether the dismissal is fair or unfair (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.[33]The ACAS Code of Practice 1 on Disciplinary and Grievance Procedures 2015 applies to the procedure followed.[34]The main caselaw that the tribunal took account of is set out below.[35]It was held in Abernethy v Mott, Hay & Anderson [1974] ICR 323 that: “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee.”[36]British Home Stores Ltd. Burchell [1980] ICR 303 held that “First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in in all the circumstances of the case.”[37]When determining reasonableness, the tribunal should not focus on whether it would have dismissed in the circumstances and substitute its view for that of the employer – Iceland Frozen Foods Ltd v Jones [1983] ICR 17, EAT.[38]The test to be applied in determining reasonableness is whether the employer’s decision to dismiss fell within the range of reasonable responses available to it –(1) Post Office v Foley(2) HSBC Bank plc v Madden [2000] ICR 1283, CA.[39]In J Sainsbury plc v. Hitt [2003] ICR 111, the Court of Appeal said that, 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.[40]In Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854 it was held that where dismissal is for gross misconduct, the tribunal has to be satisfied that the employer acted reasonably both in characterising the conduct as gross misconduct, and then in deciding that dismissal was the appropriate punishment. Conclusions What was the reason for the claimant’s dismissal?
Conclusions
[41]Considering the procedures undertaken and the contents of the dismissal letter, I find that conduct was the reason for dismissal. The alleged breach of trust and confidence is part of conduct. If the reason was conduct, did the respondent act reasonably in all the circumstances in treating that conduct as a sufficient reason to dismiss the claimant?[42]With respect to allegations 3-6, due to the passage of time, lack of specificity, lack of evidence, and/or low level of seriousness, these allegations would not be sufficient to merit dismissal. The parties concentrated on allegations 1 and 2 at the hearing and the Tribunal will address these two allegations as the primary reasons for dismissal. Context[43]Putting the dismissal in context, Mr Shafique knew that the claimant looked up to him as her ultimate boss and that she had come to him complaining about his sister, Ms Noreen’s behaviour.[44]He knew that Ms Noreen and the claimant found it difficult to get along at times. Whilst Ms Noreen had made allegations against the claimant, the claimant had also made allegations about Ms Noreen. As Mr Shafique was not often in the post office, he was not witness to much of what went on and therefore he was largely relying on the conflicting evidence of his sister and the claimant.[45]The investigatory stage was one-sided. There was no input from the claimant due her sickness, albeit she had been given an opportunity to respond.[46]Mr Shafique had said in evidence that he found the claimant to be truthful and a very honest, good worker. She had a clean disciplinary record and she had good relationships with customers.[47]Although the claimant had been invited to attend the disciplinary, and she had refused an occupational health assessment to determine whether she was fit to attend, the fact remains that the hearing proceeded in her absence.[48]Against this background, and the limited input from the claimant, it was incumbent on Mr Shafique to proceed with caution when deliberating on the disciplinary evidence. Allegation 1 - Drinking at work resulting in erratic behaviour[49]Whilst the allegation was that drinking had been going on for some time and both respondents said they smelt alcohol on the claimant, the claimant had never been confronted about this previously. Therefore, she was given no opportunity at the relevant times to defend herself or discuss any concerns the respondents may have had. If this had been of such concern to the respondents, it is surprising that no mention had been made of it.[50]The first the claimant knew about the allegation was when she received the letter from Ms Noreen inviting her to the 13 January 2021 investigation. By this time, she was already off sick with stress.[51]The respondents had no good supportive evidence that the claimant had been drinking. They had never looked inside the claimant’s flasks. Ms Noreen had searched the claimant’s bag without permission and found nothing. The highest the respondents could put it was that they suspected drinking.[52]Whilst Mr Shafique wrote in his dismissal letter that the claimant had never actually denied the allegation, she was not present at the hearing and she was never directly asked the question whether she had been drinking. Also, at the time, she was suffering from stress and signed off sick by her GP.[53]With respect to erratic behaviour, Mr Shafique had not indicated previously any problems with the claimant’s behaviour. Whilst there was CCTV in the post office, no footage was produced to demonstrate poor behaviour.[54]Mr Shafique said in evidence that he had never had any issues with the claimant’s work. If she had been drinking as alleged, it is likely that this would have manifested itself in the quality of her work and relationships with customers. On the contrary, however, she appeared to be popular with customers.[55]Mr Shafique told the Tribunal that he found the claimant to be truthful. He had no intention of dismissing her until receiving her response to the disciplinary allegations, when he changed his mind because he believed she was not willing to build relationships with Ms Noreen.[56]With little evidence to support the allegation of drinking, Mr Shafique failed to demonstrate that he had reasonable grounds for believing the claimant had been drinking and/or had been erratic in her behaviour because of drink. Allegation 2 – failing to carry out a reasonable management instruction[57]There was a stark conflict of evidence between the account given by Ms Noreen and that given by the claimant. However, this was the first time such an issue had been formally raised with the claimant. The claimant had never been warned before about not following reasonable instructions and Mr Shafique was happy with her work.[58]Mr Shafique had before him in evidence the claimant’s text message from that morning informing him of her panic attack, and he knew of the complaint the claimant had made about his sister’s behaviour. He had the FIT notes from the GP recording stress and bullying at work. Nonetheless, despite saying he found the claimant to be honest, his dismissal letter read as though he gave little weight to her evidence. A factor in this is likely to have been his intention to dismiss because of her relationship with Ms Noreen.[59]Under these circumstances, Mr Shafique did not have reasonable grounds for believing that the claimant had failed to carry out a reasonable management instruction. Whether the substantive decision was within the band of reasonable responses.[60]For the reasons given above, the grounds upon which the claimant was dismissed for gross misconduct were not within the band of reasonable responses. The respondents did not act reasonably in treating those grounds as a sufficient reason to dismiss the claimant.
Procedure
[61]Although it was not ideal to have Ms Noreen undertake the investigation, the small size and limited resources of the business, restricted the options reasonably open to the respondents.[62]Whilst the disciplinary went ahead in the claimant’s absence, the date had been moved to try and facilitate her attendance. Although the claimant was off sick at the time of both the investigatory and the disciplinary, the respondents had requested that she undertake an occupational health assessment to determine her fitness to attend the disciplinary. She refused, under the mistaken belief that her FIT notes alone would suffice to excuse her non-attendance.[63]It appeared to the claimant that Ms Noreen would carry out any appeal, and this dissuaded her from appealing. However, the letter did not actually say that Ms Noreen would undertake the appeal and made no mention of who would carry out the process.[64]Under these circumstances, although aspects of the procedure could have been better handled, the respondents acted within the band of reasonable responses in this regard. Overall conclusion[65]The respondents did not act reasonably in all the circumstances by dismissing the claimant for gross misconduct. Consequently, the claimant’s complaint of unfair dismissal is well-founded. REMEDY JUDGMENT The respondent is ordered to pay the claimant compensation for unfair dismissal of £7,664.95. Basic Award 3 years’ service £969.26 1.5 x 3 x £215.39 Compensatory Award Loss of earnings from 19.2.2021 to 28.1.2022 49 x £211.50 = £10,363.50 Less wages earned (£4,255.14) £6,108.36 No adjustments for Polkey, Contributory Fault or ACAS procedure Future loss from 29.1.2022 to 3 x £62.44£187.33 18.2.2022 Loss of Statutory Employment Rights £400.00 Total £7,664.95The Employment Protection (Recoupment for Jobseeker’s Allowance and Income Support) Regulations 1996 apply. For the purposes of regulation 4 of the Regulations the following figures are required: Prescribed element: £6,108.36 Prescribed period: 19 February 2021 to 28 January 2022 Total monetary award: £7,664.95 Excess of total monetary award over prescribed element: £1,556.59