Employment Judge SharkettMr P Sangha (instructed by Counsel) for respondentDate 22 December 2022
JUDGMENT
[1]The claimant’s claim that he was automatically and unfairly dismissed by reason of making a protected disclosure is not well founded and is dismissed.[2]The claimant’s claim that he was automatically and unfairly dismissed by reason of asserting a statutory right to be paid wages is not well founded and is dismissed.[3]The claimant was fairly dismissed. The claimant’s claim of unfair dismissal is[4]The claimant’s claim for breach of contract (company car claim) is not well founded and is dismissed[5]The claimant’s claim of unlawful deduction of wages succeeds in part. The respondent is ordered to pay to the claimant the sum of £250 being the sum of commission owing to him. (The claimant will be responsible for accounting to HMRC for any personal tax liability arising out of this payment).[6]The respondent accepts that it failed to provide the claimant with a written statement of employment particulars. The Tribunal award the sum of 4 weeks’ pay in respect of that failure. The respondent is ordered to pay to the claimant the sum of £1412.31. (the claimant will be responsible for accounting to HMRC for any personal tax liability arising out of this payment)
REASONS
[1]The claimant brings claims of unfair and automatically unfair dismissal under s103A and s104 Employment Rights Act 1996 (ERA 1996). He brings further claims for non- payment of commission as a claim of unlawful deduction of wages and a breach of contract claim which includes further monies he claims to be owed as a result of a tax liability arising from his use of a company car. The claimant had originally also pursued a claim of sex discrimination but this was dismissed upon withdrawal by the claimant prior to this final hearing.[2]The issues to be determined by the Tribunal were agreed at the preliminary hearing of 3 August 2022. Following some discussion these were amended to reflect that the claimant had withdrawn his claim of sex discrimination. We also discussed whether having regard to the pleadings, the claimant had also alleged that he had been dismissed for asserting a statutory right to be paid commission. Whilst the respondent submitted that this was not the basis on which the claim had been pursued to date, it had no objection to the Tribunal considering the unfair dismissal claim in the alternative. Given that the claim for commission was clearly identified as an unlawful deduction of wages claim at the preliminary hearing, and the fact that the pleadings quite clearly claim the claimant’s belief that this triggered his dismissal, it was agreed that the Tribunal would consider the claim under s103A and s104 ERA 1996, as it would cause no prejudice to the respondent and it was in the interests of justice to do so.[3]The issues to be determined were then in respect of the reason for dismissal:a. Has the respondent shown the reason or principal reason for dismissal? The respondent says the reason for dismissal was misconduct. The claimant suggests that the real reason for the dismissal was that he had claimed commission due to him and/or that his role was redundant, and/or that he had made a protected disclosure.b. Was the reason for dismissal a potentially fair reason under s98 ERAc. Alternatively was the reason or principal reason for dismissal either(i) that the claimant had asserted a statutory right to payment of commission, or,(ii) that the claimant had made a protected disclosure (in the sense of not granting the claimant’s appeal against dismissal as the alleged disclosure post-dated the dismissal), if so the dismissal is unfaird. If the respondent can show that the dismissal was a potentially fair reason then, applying the test of fairness in s98(4) did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant?e. In circumstances where the respondent relies on conduct as the reason for dismissal the Tribunal will consider whether: i. The respondent had a genuine belief that the claimant had carried out the alleged misconduct ii. That the belief held was a reasonable one, based on a reasonable investigation of the facts iii. That the respondent had followed a fair procedure and iv. That the dismissal was within the band of reasonable responsesf. It is the claimant’s case that the decision was unfair because: i. Gross misconduct had not been proven ii. This was the first time he had been subjected to disciplinary action and therefore the outcome was unfair iii. There was a lack of management directive and the issue should have been raised informally before any formal action was taken. iv. There had been a failure to provide him with a contract or job description and therefore there were no defined hours or expectations v. That other people who had committed more serious breaches had not faced sanctions, and; vi. an unfair process had been followed as he had not been provided with a copy of the employee handbook; it was custom and practice to work flexibly and although he was given notice of the disciplinary hearing, the issue of his timesheets was first raised in a meeting which was ‘disguised as an annual review in or around 14 December 2022.g. In respect of the whistleblowing claim the issues are: i. Whether the claimant made one or more qualifying disclosures as defined in s43B ERA 1996 in particular the Tribunal will determine whether any of the following amount to protected disclosures for the purposes of s43B: ii. In his written grievance dated 24 December 2020, the claimant alleges that he disclosed that Mr Henderson (the MD of the respondent) would provide customers who wanted to claim EU grants through the Rural Payments Agency, with fabricated quotes for machinery on letterheads from other companies within the Lely Franchise group This was done so that customers could satisfy the grant requirement of having 3 different quotes for the machines they wanted to purchase. It is the claimant’s case that his appeal was not allowed nor his grievance upheld because of this disclosure.h. The Tribunal will have to determine whether the above:i. Amounted to a disclosure of information; ii. That he believed to be in the public interest – it is the claimant’s case that the effect of the alleged conduct was to defraud the EU and/or the Rural Payments Agency and, ultimately the tax payer; iii. Whether the claimant’s belief was reasonable and iv. Whether it tended to show that:[1]A criminal offence had been, was being or was likely to be committed[2]A person had failed, was failing or was likely to fil to comply with any legal obligation;[3]Information tending to show any of these things had been, was being or was likely to be deliberately concealed and;[4]Whether his belief was reasonable v. If the Tribunal find that the claimant made a qualifying disclosure, it will be a protected disclosure because it was made to the claimant’s employer i. If the claimant has made a disclosure that is protected the Tribunal will then consider whether he was subjected to the following detriments; i. Failing to uphold the claimant’s appeal against dismissal ii. Failing to uphold the claimant’s grievance and if so; iii. Whether the claimant reasonably considered the above to be subjecting the claimant to a detriment, and, if so; iv. Was the act of detriment done on the ground the claimant had made a protected disclosure j. The issues to be determined in respect of whether the claimant asserted a statutory right were: i. Did the claimant assert a relevant statutory right? The claimant will say that his statutory right was his right to claim his commission ii. Did the claimant assert that right by alleging that the respondent has infringed his right (s104(1) k. The issues to be determined in respect of the unlawful deduction of wages claim (commission payments) were redefied as: i. What wages were properly payable to the claimant? ii. How much was paid to the claimant? iii. Was there a deduction of wages if so how much? iv. Was the deduction for an authorised reason or was there an unlawful deduction and, if unlawful v. How much was unlawfully deducted from the claimant’s wages? l. Breach of contract i. Did these claims arise or were they outstanding when the claimant’s employment ended? ii. Was there an agreement between the claimant and the respondent to provide the claimant with a pool car rather than a company car iii. Was the respondent in breach of an agreement to provide the claimant with a pool car by providing him with a company car. If so iv. Should the claimant be awarded damages for the breach in the sum of the additional tax incurred by the claimant when HMRC assessed the car to be a company and not a pool car. v. In respect of payment of commission: 1. What were the terms of the respondent commission scheme – whether oral or in writing 2. Was there a variation of any of the terms of the scheme between the respondent and the claimant 3. Was the respondent in breach of its duty to pay commission to the claimant, if so 4. How much damages should be awarded to the claimant for breach of the agreement. 4. The respondent has accepted during the course of these proceedings that a written statement of terms and conditions of employment was not provided to the claimant. The Tribunal will therefore be required to consider whethera. There are exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under s38 Employment Act 2002. If not, the tribunal must award two weeks’ pay and may award four weeks’ pay?b. The Tribunal must consider whether it would be just and equitable to award four weeks’ pay?[5]The claimant was represented by his partner Miss Bibby a lay representative and the respondent by Ms Sangha of Counsel. Both parties had prepared written witness statements which had been exchanged and were taken as read by the Tribunal. We also heard oral evidence in cross examination from the claimant and from the two directors of the respondent, Mr Henderson, the Managing Director, and Mr Armstrong, director. All witnesses answered questions from the Tribunal for the purposes of clarification of the issues to be determined.
Findings of Fact
[6]The Tribunal makes the following findings of facts, on the balance of probabilities. The findings of fact are not a rehearsal of all the evidence before us, but are based on the salient facts from which we have made our findings. We have however made these findings having had regard to all the evidence in the round. Any references to page numbers in this Judgment are references to page numbers in the bundle(s) provided for the purposes of this hearing unless otherwise stated.[7]By way of background the respondent is one of nine franchises of an international company called Lely based in the Netherlands. The franchises, which operate in the UK and Ireland, provide robotic equipment to farms. Of relevance to this hearing, is that the respondent mainly provided robotic milking equipment. It is accepted that sales of this equipment take a long time to come to fruition and that the financial outlay required from farmers is significant, sometimes running to hundreds of thousands of pounds. From time to time the UK government has made grants available to farmers to assist them in the purchase of the equipment. It is was not disputed that farmers seeking to obtain a grant would have to provide three quotes from different providers of the equipment with their application.[8]The claimant, himself a dairy farmer, was employed by the respondent from 23 March 2018, as a part time sales advisor in the Yorkshire area. During that time he continued to be involved in his family farming business and we were told that he also had a portfolio of properties that formed part of his business. The claimant had no previous experience of selling robotic milking equipment to farms, but had previous experience in sales, working for Land Rover. As is evidenced in his email application for a job with Lely, in February 2017, the claimant had also had dealings with most of the dairy farmers in Yorkshire, Lancashire, Cumbria and beyond. Statement of employment particulars and hours of work[9]The claimant was employed to work on a 0.6 contract which was agreed is the equivalent of three days per week. There is no evidence that any set hours or days were agreed between the parties. It is Mr Henderson’s evidence that the claimant was required to work three full days a week, but that the choice of days were flexible, whereas it is the claimant’s case that the hours he worked were entirely flexible. It is not disputed that the claimant was not issued with a written statement of employment particulars. Mr Henderson explained that this omission was just an oversight and all other employees had written contracts. Whilst his written evidence was that the claimant had never brought this omission to the attention of the respondent, he did admit in oral evidence that the at the beginning of furlough the claimant told the general manager that he did not have a written contract. Mr Henderson was however unable to explain why the situation was not remedied when the omission was raised. The fact that the claimant agreed to be furloughed at that time did not mean that he lost his entitlement to a written statement of terms and conditions of employment as seemed to be implied by Mr Henderson.[10]The Tribunal note that there is little documentary evidence that can be relied upon to establish the hours upon which the claimant was required to work. Neither the claimant nor the respondent has completed the relevant section of the ET1 and ET3 forms, although there is reference in the grounds of complaint to the claimant being employed to work three days per week, with no mention of set days. The only relevant time sheets that were produced were ones that the claimant had admitted he made up. In oral evidence the claimant told the Tribunal that ‘creating’ a time sheet was common practice within the respondent and that his working pattern was flexible. The respondent denies that sales advisors routinely created time sheets that were not accurate. The Tribunal find that there is no more than a bare assertion on the part of the claimant that there was a practice of creating time sheets that did not reflect the correct work carried out, and observe that there would be little point in the respondent asking for time sheets if that was an accepted practice. For this reason, the Tribunal find, on the balance of probabilities that there was not a routine and accepted practice that sales advisors would submit time sheets that were made up.[11]The claimant told the Tribunal that he kept notes of the visits he had made to farms on his i-pad however, despite his evidence to the Tribunal he has not produced his I-pad or his notes at this hearing despite making further disclosure of other documentary evidence throughout the course of the hearing. In his witness statement the claimant agrees that time sheets were filled in regularly prior to furlough, The time sheets that are before the Tribunal show a general pattern of working three days each week, with variations on only a few occasions where the claimant records working over more than three days. It is therefore reasonable to conclude that for most of the time the claimant worked 3 full days per week because, although it is agreed he made the time sheets up, that is the pattern he has recorded in them. In the circumstances and in the absence of any documentary evidence to the contrary, the Tribunal find, on the balance of probabilities, the claimant was contracted to work three full days each week with a flexibility to depart from that where the respondent business needs required. He received an annual salary of £18,000 based on a twenty four hours week. In addition to his salary the claimant also had the potential to earn commission on completed sales that he had secured. Use of company vehicle[12]The dispute before the Tribunal arises in respect of the personal tax liability on the car provided by the respondent and used by the claimant during the course of his employment. It is the respondent’s case that the claimant asked the respondent to provide a company car when he commenced work as he did not have a car of his own. In his written witness statement (para 31) the claimant disputes this and states that he was unaware that he might incur a tax liability by using the car he had been given. In his witness statement he also states that had he known he might incur punitive taxes he could easily have returned the car to a local depot as others had decided to do. The Tribunal find that this evidence this entirely disingenuous because in oral evidence the claimant confirmed, that contrary to what was in his witness statement, at the outset of his employment with the respondent he believed the car to be a company car and that he would be liable to pay any tax on the same as a benefit in kind. He accepted that he had full use of the car and that it could not be said to be a pool car because he was not required to return it at night or make it available for use by others when he was not at work, he also confirmed that he was also required to account for private mileage.[13]In oral evidence the claimant explained that although he first believed the car to be a company car that he would have to pay tax on, he was subsequently told by a sales advisor colleague that the cars were ‘pool cars’ and therefore there was no personal tax liability. It would appear that at least some of the cars were registered with HMRC as ‘pool’ cars, but following an inspection by HMRC this was deemed to be incorrect and the ‘users’ of the vehicles were required to pay tax on the benefit they had received whilst having full use of the cars.[14]As the claimant had more than one source of income he was required to submit a self-assessment to HMRC each year and we were told that the claimant retained the services of an accountant to advise him on his business matters. The claimant did not declare the benefit of the car on his tax return and he was subsequently issued with a tax bill for the two years in which he had not paid tax on the benefit he received. It is the claimant’s case, that this resulted in him having to pay tax at the higher rate that year because the cost of the benefit from the previous year was added to the benefit in the same year, which ,he told the Tribunal took him into a higher tax bracket. It is the claimant’s case that the respondent should be responsible for the money the claimant had to pay out because it had wrongly labelled the cars as ‘pool’ cars. The respondent denies that the claimant’s car was registered as a pool car and will say that the claimant should and would have been aware that having full use of the car would incur a tax liability. It was not denied that the claimant had asked the respondent for a car when he started work because he did not have a car of his own and has been using his partner’s car.[15]The claimant explained to the Tribunal that it had been his accountant who had advised him to seek to recover the additional expense he had incurred by reason of not declaring the car to HMRC as a company car. The claimant accepts that he never had a discussion with the respondent about the tax status of the car either in respect of liability for tax or payment of any tax due. Commission[16]The claimant also pursues a claim for payment of commission for work he did whilst employed by the respondent. He brings this claim both as an unlawful deduction of wages claim, or in the alternative a breach of contract. It was accepted by both parties that there was no formal written commission structure in place and it has been necessary to order further disclosure of evidence in an attempt to establish what sums, if any, were properly payable to the claimant. Although the burden in an unlawful deduction of wages claim is on the claimant to show, on the balance of probabilities, the sums that were properly payable to him, the Tribunal had regard to the fact that the claimant was not legally represented and it was in keeping with the overriding objective for the Tribunal to make such enquiry, it being in the interests of justice to do so.[17]The claimant accepted that he never asked how the commission scheme worked. He had been working for the respondent since 23 March 2018 before he submitted his first claim for commission on 26th November 2020.[18]During the course of giving evidence Mr Henderson explained how the commission scheme worked and at the reconvened hearing in July 2022, he produced a supplemental witness statement setting out the basis upon which entitlement to commission fell due. In oral evidence Mr Henderson explained that because of the cost involved in installing robotic milking equipment, decisions to purchase are not made lightly. He told the Tribunal that it can be a long process sometimes taking years before a client will commit to an order. The process would usually start with initial discussions, followed by visits to other farms already using the equipment. Drawings are then prepared before pricing and specification, which he explained would hopefully lead to an order. He explained that sometimes verbal orders would be agreed pending a grant being obtained to assist with the cost of the purchase. Once an order was placed a project co-ordinator would then take over.[19]Of some assistance to the Tribunal in determining the issues in respect of commission payments is a copy of a contract of employment for a Sales Advisor. It has been redacted to protect the identity of the individual. Paragraph 2.2 broadly reflects the understanding explained by the claimant in respect of sums payable as commission (p672): “You will be entitled to a commission based payment of £500 per robot once installed and on completion of payment from the customer. This is subject to the usual tax and NI deductions. There is a further 1% commission paid on the value of other goods which you sell. This is also subject to tax and NI deductions.”[20]The contract is silent on who is entitled to payment when more than one sales advisor has been involved with a client before installation takes place. This is not clear from the document, and the uncertainty is confirmed by the claimant because when he submitted his claim for commission on completed orders the email he sent (p410) which is subject headed – ‘list of equipment for consideration for commission” states: “List of equipment for consideration for commission, David I know that you have sold some of this equipment so please pay me what you think is fair”[21]Mr Henderson told the Tribunal that it can take many years for quotes to come to fruition and that it is the person who signs the sales contract that will be entitled to the commission on the order. The claimant argued in oral evidence and in his written witness statement (para 12) that it was the practice for Mr Henderson to sign all the sales contracts and, that being case, if Mr Henderson’s account was correct no one other than Mr Henderson would have been entitled to commission because no one else signed the sales contracts. However, when the claimant was taken to documentary evidence that showed other sales advisors were signatories to sales contracts, (p581, p589, p591, p597) the claimant changed his explanation and told the Tribunal that he had not wanted to sign the sales contracts himself because of the amount of money involved. He had therefore not objected to Mr Henderson signing the sales contracts. The Tribunal preferred the evidence of Mr Henderson in respect of the basis on which sales advisor became entitled to payment of commission, firstly because the claimant changed his story when confronted with documentary evidence contrary to his account and also because the Tribunal did not find his alternative explanation credible. The claimant did not take any risk in securing orders and would therefore have no credible reason not to put his signature on the form. It would be the farmer who would risk the money when signing the order form not the claimant. For the above reasons the Tribunal find on the balance of probabilities that, in order to be eligible for commission on a sales contract, a sales advisor would need to have concluded the sale by means of signing the sales contract.[22]The claimant has argued that he had worked many hours over and above his contracted hours in order to ensure that farmers placed orders with the respondent and did not take their business elsewhere. On this basis he believes that he should be financially rewarded for this. He accepted that this was just an assumption on his part and agreed that he had never asked whether he was entitled to payment. Having regard to the wording of the email to Mr Henderson as set out above, the Tribunal find that it is clear, that on the balance of probabilities any monies that the respondent may have chosen to pay the claimant in recognition for additional work he claimed to have done over and above his normal day to day work, for which he received a salary, would have been at the discretion of Mr Henderson. Unfair dismissal[23]In his grounds of complaint (p8), the claimant maintains that his dismissal for gross misconduct was “in [his] opinion an extreme reaction to a minor paperwork error that should have been dealt with on a disciplinary route”. The claimant maintains that the decision to dismiss him was pre-determined and that the real reason he was dismissed wasa. because his position was redundant.; and/or,b. because he submitted his claim for commission; and/or,c. that in his letter of grievance (which post-dated his dismissal) he made a protected disclosure when he raised the fact that he had been asked to, commit fraud by creating false quotes for farmers seeking to obtain grants from the government and that Mr Henderson had committed such a fraud.[24]The claimant first submitted a request for payment of commission on 26th November 2020. This was the only claim for commission that the claimant had made since he started work for the respondent on 23 March 2018. The claim was in the sum of £9529.29 and claimed on the basis of commission he believed he had earned over the previous two and a half years. When asked in oral evidence why he had not put in any claims prior to this one, he explained that he had not bothered because he hadn’t previously needed the money. As set out above when he submitted these claims he acknowledged that he had not been responsible for some of the sales but had worked with Mr Henderson on them and as such invited Mr Henderson to pay him what he considered to be fair.[25]On 3rd December 2020 the claimant received payment of the commission that had been approved by Mr Henderson in the sum of £2458.99 (p121) He did not agree that the claimant was entitled to payment of any further commission because he had not been the sales advisor who had ‘sold’ the products. It is not disputed that this payment was authorised prior to the claimant’s submission of his time sheets for November 2020 and prior to his dismissal on 22nd December 2020. In evidence Mr Henderson explained how the claimant had been paid for those sales he had secured, save for one in the sum of £250 which he now conceded was owed. He explained that the claimant had worked on some of the sales with him but that his role at that time was not to sell but to learn from Mr Henderson. He acknowledged that the claimant had put in additional hours with one of the customers, but that this had been of his own volition and not something that had been required of him by the respondent. He explained that all the sales advisors helped out with work on installations as part of their day to day work for which they received a salary.[26]It is the respondent’s case that the reason the claimant was subjected to disciplinary investigation and subsequent dismissal was because he had submitted false time sheets. Prior to the disruption caused by the pandemic sales staff had submitted time sheets each month. Throughout the period of lockdown and furlough this had not occurred for reasons which would appear obvious if staff were not in work. However, the staff had not been told that they were no longer required to submit time sheets and when they returned to work there was an expectation they would do so. It would appear however that unbeknown to Mr Henderson, the sales staff were not doing this and on 1st December 2020 Mr Henderson sent an email to all the sales staff which read: “Gemma has mentioned that she has not received time sheets from the sales team for some time. Could you all please forward a copy to Gemma at least since 1st November asap. These are important to keep holiday information correct as well as time worked. If anyone needs a copy of their tracker report please ask Sharon to send it to you.[27]It is the claimant’s case that the request for time sheets had been a trap set for him because he had asked for payment of commission. However, the Tribunal note that the request was addressed to all sales advisors and not just the claimant. The Tribunal further note that there is no evidence, nor is it suggested, that the other sales advisors were not required to submit their time sheets, or that it was widely accepted, as is suggested by the claimant, that that there was a practice of submitting inaccurate time sheets.[28]In oral evidence the claimant accepted that he did not respond to this email and explained that this was because he was busy delivering hampers to clients and had ‘bigger fish to fry’. In his opinion the respondent had managed without time sheets since lockdown and he saw no need to respond to the request. His view was, and remained so when giving evidence to the Tribunal, that there was a tracker on his car so the respondent would know where he had been. It was only when he was chased for the time sheets on 3rd December 2020 that he completed them for November and submitted them the next morning, 4th December 2020.[29]In oral evidence the claimant told the Tribunal that he had not asked for the copies of the trackers that had been offered to assist in the completion of the time sheets, because in his mind he did not see it as important. He also said that Sharon Sloan (Ms Sloan), would have taken too long to send them to him and that by the time he was chased it was too late to ask for them. He told the Tribunal that there were ‘not enough hours in the day to track Sharon down’ but did not give any examples of occasions when he had been left waiting for information from Ms Sloan, or offer any other explanation for the basis on which he made this statement.[30]The claimant told the Tribunal on a number of occasions that when he had text Gemma to confirm he had sent the time sheets, he also told her they were not accurate. A copy of that text message is before the Tribunal as is a copy of the email attaching the timesheet (p664) neither make any mention of the accuracy or otherwise of the time sheets. The Tribunal find that the claimant’s evidence in this respect is inconsistent with the documentary evidence before it and that, on the balance of probabilities, the claimant did not inform anyone from the respondent that the time sheets were submitted on the understanding that they were not accurate.[31]In oral evidence Mr Henderson explained that the sales staff are not hourly paid and that the trackers are regularly used to cross reference that staff are in work on the days they say they were. He explained that they were not closely examined but that when it is clear that the tracker does not tally with where someone says they have been that raises a suspicion and warrants a closer look, which is what happened with the claimant.[32]It was Ms Sloan who raised the initial discrepancy with Mr Henderson as it was she who dealt with the trackers and time sheets. Mr Henderson then carried out a closer examination of the time sheets, cross refencing to make sure that it was not just a case of a wrong day being inputted. Mr Henderson then decided that he would speak with the claimant to see what he had to say before deciding whether to proceed down the formal disciplinary route.[33]The claimant was due to have his annual appraisal on 14th December 2020 and Mr Henderson decided that this would be an appropriate occasion to raise it with the claimant. At the end of the meeting Mr Henderson asked the claimant if he could explain why his time sheet recorded that he had attended two farms visits when the tracker showed that he had not left Harrogate on the given days. The claimant was unable to offer any explanation at the time and Mr Henderson informed the claimant that this was a serious matter that could amount to gross misconduct. He told him that he would be invited to a disciplinary meeting where he would be given an opportunity to explain the situation.[34]In oral evidence the claimant told the Tribunal that he believed Mr Henderson had already decided to dismiss the claimant by 14th December 2020, because during the appraisal he did not discuss the claimant’s targets for the next year until the claimant raised it with him after the meeting. The claimant accepted in cross examination that when he asked he was told that his targets would be the same as the previous year. In support of his argument that his dismissal had been predetermined the claimant referred the Tribunal to the appraisal form of his colleague Mr Simpson. The claimant relies on the fact that during his appraisal Mr Simpson was told what his targets would be, and was also told that his targets may be changed the following week and that he would be notified if that was the case.[35]The Tribunal find that Mr Henderson has been quite clear in his evidence (and had been to the claimant prior to his disciplinary hearing), that he considered the submission of false time sheets to be an act of gross misconduct. Therefore. in the absence of a satisfactory explanation from the claimant at the subsequent hearing, dismissal would be an option open to Mr Henderson In the circumstances is not unreasonable that a respondent would need contingency plan in place should that be the outcome. On the balance of probabilities, the Tribunal find that giving an indication to Mr Simpson that his targets for the next year ‘may’ change is not evidence that the outcome of the claimant’s subsequent disciplinary hearing was pre-determined.[36]The claimant was invited to a disciplinary meeting on 21 December 2020 and put on notice of the potential outcome of the meeting should he be unable to provide a satisfactory explanation to the allegations that had been made known to him. The respondent refused the claimant’s request to bring the meeting forward to the 18th December 2020 because Mr Henderson wanted to ensure that the claimant had sufficient time to enable him to prepare for the meeting, given the seriousness of the allegations.[37]The meeting took place via zoom due to Covid restrictions. Mr Henderson chaired the meeting and Ms Sloan attended as a note taker. Mr Simpson, a colleague, accompanied the claimant. It is accepted that whilst the claimant had the trackers and time sheets in time for the meeting, he did not have a copy of the company handbook which was said to have been attached to the disciplinary invite. The claimant did not forewarn the respondent that he did not have the handbook prior to the meeting and whilst he raised the fact that he did not have it, did not raise any objection to the meeting continuing without seeing it.[38]At the meeting the claimant was invited to explain the inconsistencies between the trackers and the time sheets. He was also asked to account for the work he carried out during the hours recorded on the time sheets. The claimant was of the view that retrospectively making up his time sheets was a minor breech and did not amount to gross misconduct . He told the respondent that he should not be attending a disciplinary for the matter and that it should more properly have been dealt with by a phone call. He told Mr Henderson that he had not filled in a time sheet since March 2020 and had been asked to produce these time sheets at short notice. He told him he had always worked flexibly, and that he had been spending time carrying out research within the dairy industry. Mr Henderson drew the claimant’s attention to the fact that he had not produced any evidence of research he had been carrying out and that the trackers recorded driving activity at the times the claimant’s time sheets recorded him as being at home doing emails and other administrative duties.[39]In response to what Mr Henderson said, the claimant’s response had been that it was ‘a two way job’ and there had been a lack of guidance from management. He accepted that he had filled the time sheets in incorrectly but did not accept that what he had done amounted to gross misconduct. He suggested instead that he should be placed on flexi-furlough as it would be a shame for the farmers if they were to ‘bin him’ (p438)[40]In oral evidence Mr Henderson agreed that failing to complete the Lely Sales Portal(a mater which was also raised in the disciplinary hearing) would not be an act of gross misconduct. However, he explained that not only had the claimant falsified his time sheets and had not been working when he said he had been, but that many of his answers during the disciplinary meeting had been dismissive and showed no remorse. He accepted that the claimant had admitted making up his time sheets but explained that he took no responsibility for his actions and instead looked to blame others for asking for the information at short notice and for management not giving adequate guidance. Mr Henderson explained that the respondent did not micromanage sales staff, and that the claimant was an experienced sales person who knew what was expected of him. Mr Henderson told the Tribunal that he did consider what other options were open to him instead of dismissal but said that ‘it was the whole trust thing’. He had lost trust in the claimant because he had said that he had been working for the respondent during hours when the documents clearly demonstrated that he was not.[41]In oral evidence before the Tribunal the claimant remained of the view that his actions did not amount to an act of gross misconduct. He explained that there had been “mad dashes” to complete time sheets in the past and that he had filled them in retrospectively without a problem. It was his evidence that the time sheets couldn’t have been so important because if they had been they would have been flagged as such and, in any event ,they had managed to function without then for 3-4 months and so in his opinion they were ‘not crucial to the day to day business so not the end of the world’ In oral evidence the claimant accepted that paperwork was not his strong point but did not consider there was a problem because he had admitted that his time sheets were inaccurate and so therefore he should not have been dismissed for gross misconduct.[42]The question of the claimant’s request for payment of his commission was not raised at the disciplinary hearing.[43]The claimant was informed of his summary dismissal and right of appeal which was confirmed by letter of 22 December 2020. By email of 22 December 2020 (pp439), the claimant informed the respondent of his intention to appeal the dismissal and that he would also be raising a grievance.[44]The claimant exercised his right of appeal by email of 23 December 2020. The grounds of his appeal were:a. Gross misconduct had not been provedb. That it was unfair unreasonable and disproportionate to allege gross misconduct because it was the first time he had faced disciplinary action and gross misconduct was reserved for very serious offences.c. That lack of clear management instructions had led to him being treated unfairly when he had always worked flexibly and longer hours when needed.d. The matter should have been discussed with him informally before any disciplinary action was takene. The lack of a written contract of employment had denied him the opportunity to know what hours were required of him.f. That he had been treated inconsistently with other employees who had breached company rules.g. The failure to provide him with a company handbook prior to the disciplinary hearing rendered the process unfair.[45]The following day 24 December 2020, the claimant submitted a grievance. In addition to complaining about the disciplinary process and outcome as outlined above. the claimant also complained thata. his request to be paid commission had triggered his dismissal,b. his work in Yorkshire had gone quiet and his position should have been made redundant or put on furlough or, a management improvement processc. That management failed to put him on a management improvement plan and kept him away from customers thus preventing him from doing his job.d. That he was not given a written contract of employment,e. That the company had mismanaged his company car and caused him to incur a punitive tax codef. That because he had not been properly managed he had not taken his holiday entitlementg. That payslips were structured in an inappropriate way which was probably in breach of HMRC codes of practice and commission payments were not clearh. That others taking smoke breaks were also costing the company time and bringing the company into disrepute[46]The grievance also included the following which the claimant will say amounts to a protected disclosure: “ Whilst I am held to these high standards this company commits fraud on a grand scale through creative invoicing and accounting set out to defraud the RPA. One of the Directors has even joked with me about it with me. So why am I being held to such a high standard?”[47]Mr Armstrong, Mr Henderson’s co-director carried out the appeal and grievance at the claimant’s request. Both were considered jointly without objection from the claimant.[48]During the course of the meeting on 11th January 2021 the claimant was asked to expand on his complaint about the respondent committing fraud. When asked if this was with reference to the grant scheme, the claimant replied that it was to do with creative paperwork. When asked to expand further he suggested that Mr Armstrong as a director of the respondent should speak to his ‘partner’ about it. He was asked to give examples and when pressed replied “ Ok right. One example would be where a customer pays for a system from us and then the grant scheme comes out. Then they apply for the grant. And then they get refunded and re-invoiced. That’s an example” He was unable to identify a customer that this had happened to and suggested that Mr Armstrong ask Mr Henderson. Following the meeting of 11 January 2021 the claimant wrote to Mr Armstrong confirming that he “could not remember the farmer’s name who was refunded and re-invoiced, however this was common knowledge within the accounting team” (p459)[49]The claimant also referenced that further creative paperwork took place in creating multiple quotes to enable farmers to obtain grants from the RPA. Ms Bacon who worked with the directors and attended to take notes explained to the claimant that providing quotes from two other Lely franchises was the only way a farmer could provide a like for like quote and that this had been discussed and agreed with the grant people. The claimant suggested that the quotes were completed on letterheads from other franchises without their knowledge but was unable to give any detail of an occasion on which this had occurred. He further commented in the meeting of 11th January 2021 (p354) that the reason why he had not raised these matters previously was because he enjoyed his job and did not want to rock the boat. He confirmed that the only reason he was raising his complaint at this stage was because he felt he had been treated unfairly by the respondent. In oral evidence before the Tribunal the claimant confirmed this was the reason why he raised the complaints against the respondent and that had he continued to work there he would not have ‘whistleblown’.[50]In respect of his time sheets the claimant told Mr Armstrong that he did not keep a diary of the work he carried out and when he was asked to submit a time sheet he had made up the entries he submitted. The claimant’s evidence was that ‘creating’ time sheets was something that the sales team did.[51]In oral evidence the claimant also explained, that he kept notes on his Ipad, but did not explain why these notes had not been given either to the respondent during the appeal process or by way of disclosure to this tribunal. The Tribunal received multiple additional documents during the course of this hearing but did not receive any relating to the activities that the claimant had carried out during his work for the respondent.[52]Prior to the appeal and grievance being determined the claimant provided an additional 40 emails to evidence work that he had carried out on behalf of the respondent during November 2020.[53]Following the meeting of 11th January Mr Armstrong carried out further investigation into the claimant’s work activity during the time in question. Whilst the claimant provided further evidence of email work he had carried out during that time Mr Armstrong was not satisfied that even though the claimant admittied he had made up his time sheets, he had still not been able to account for his time.[54]In oral evidence Mr Armstrong confirmed that he had not had any involvement with the disciplinary investigation and hearing so that he could be impartial should an appeal be needed. He also confirmed that both he and Mr Henderson were of equal authority within the respondent and that it was within his gift to overturn the decision to dismiss the claimant if he believed that was the right thing to do. In cross examination and in response to questions from the Tribunal Mr Armstrong confirmed that he did not believe the issue with the claimant was one of performance as suggested by Ms Bisby, but was a matter of the claimant breaking trust. He referenced the respondent disciplinary policy and was satisfied that what he had done in submitting false time sheets was an act of gross misconduct. He acknowledged that the claimant had not had a copy of the company handbook prior to the disciplinary and that Mr Henderson and Ms Sloan had been involved in both the investigation and the disciplinary. However, the claimant had been provided with a copy of the handbook prior to submitting his appeal and he had thoroughly considered all aspects of the appeal. He therefore did not consider that the claimant had been disadvantaged. He confirmed when questioned that after the meeting on 11th January he had reviewed all the documents that he had been given, including those subsequently disclosed by the claimant in respect of work and was satisfied that the decision to dismiss the claimant had not been pre-determined. Mr Armstrong also explained that during the meeting the claimant had been blaze and dismissive about the whole matter.[55]Mr Armstrong further confirmed that he had considered the claimant’s opinion that his position was redundant. He confirmed in oral evidence that whilst the claimant’s position had not yet been filled the respondent had previously lined someone up for the job but they had been unable to take it up due to family difficulties with relocation. He confirmed that the there was still an intention to recruit but that they were prepared to wait for the right person.[56]On 21 January 2021, Mr Armstrong wrote to the claimant to ask for more time to respond. The claimant replied agreeing to a further week and expressing his dissatisfaction about what he considered to be the poor handling of his appeal and complaints.[57]On 29th January 2021, the claimant was informed that neither his appeal or grievance had been upheld (p463). The outcome letter provided a comprehensive response to the claimant’s complaints. In respect of the allegation of fraud Mr Armstrong wrote “ During your appeal and grievance meeting with me you failed to provide any evidence as the basis of this allegation and could not even name the farmers who you considered were involved”……. Submissions[58]For the respondent Mr Sanga submitted that that the reason relied on for the claimant’s dismissal can properly be classified as ‘conduct’ The claimant had submitted false time sheets and failed to complete the LSP and, the amount of time he claimed to have worked did not match the tracker report from his company car. Mr Sanga submitted that his conduct represented a very serious breach of trust and amounted to gross misconduct. He submitted that there was no basis on which the claimant could show that his dismissal was because he had claimed commission or made a protected disclosure, and the fact that he asserts this is further evidence that the claimant is unable to accept responsibility for his own wrongdoing.[59]In as far as the claimant suggests that his position was redundant Mr Sanga reminded the Tribunal of the claimant’s last appraisal where there is no suggestion from the claimant that this is the case.[60]Mr Sanga submited that looked at objectively the conduct of the claimant amounted to gross misconduct, and whilst Mr Henderson and Ms Sloan were involved in both the investigation and disciplinary, a fair procedure was non the less followed and the decision to dismiss the claimant was based on a genuine belief and within the band of reasonable responses especially as the claimant held a position of trust within the respondent. He submitted that whilst the claimant’s hours of work may not have been clearly particularised or agreed, the fact remained that the time sheets submitted were false.[61]Ms Sanga submitted that contrary to the claimant’s assertion that the respondent had failed to show gross misconduct, the claimant admitted that he had submitted time sheets that he had made up. Whilst it was the claimant’s first offence it was a serious offence and the manner in which the claimant responded to the allegations meant that the respondent was left with no other alternative. Whilst there may have been other employees who had been in breach of the respondent policies, none were consistent with the circumstances of the claimant and cannot be said to show evidence of inconsistent treatment.[62]Ms Sanga referred the Tribunal to the principle in Polkey and submitted that should the Tribunal find that a fair procedure was not followed, any compensatory award should be reduced to reflect the fact that he would have been dismissed in any event if a fair procedure had been followed. Mr Sanga further submitted, that the claimant contributed to his own dismissal by culpable and blameworthy conduct when he submitted the false time sheets and that there should be 100% deduction to any award made by the Tribunal find the claimant to have been unfairly dismissed.[63]In respect of the protected disclosure Ms Sanga submitted that if the claimant disclosed information he did not have a reasonable belief because it was an unfounded allegation. The claimant further admitted in oral evidence that had he not been dismissed he would not have raised the matter.[64]Mr Sanga submitted that the claimant was paid the commission that he was due save for the £250 which has been conceded during the course of this hearing. Mr Sanga reminded the Tribunal of the evidence of Mr Henderson and the fact that the claimant himself asked only to paid what Mr Henderson considered to be fair. That, he submitted is not how commission is calculated and the claimant was working on a false assumption if he believed that to be the case.[65]With reference to the breach of contract claim in respect of the company car, Mr Sanga reminded the Tribunal that the claimant accepted in oral evidence that he was fully aware that he would be getting a company car and that the tax due on it was his responsibility. There was no agreement for the respondent to provide the claimant with a pool car and the claimant was aware that the car he had was provided to him on the basis that it would also be for personal use as he requested.[66]Mr Sanga submitted there were no written terms in respect of what would need to be met in order to qualify for commission on a sale and that the basis upon which this would be paid is as was explained by the respondent.[67]The respondent conceded that the claimant had not been provide with a written statement of employment particulars but Mr Sanga submitted that there were no exceptional circumstances that would make it unjust or inequitable to make an award of 2 weeks’ pay but submitted that it would not be just or equitable to make a higher award because the failure was inadvertent and the respondent is relatively small with no dedicated HR department.[68]For the claimant, Ms Bisby asks the Tribunal to make a higher award for the respondent’s failure to provide written employment particulars as she submitted, that had the respondent done so the claimant would have known his hours of work and much of the dispute could have been sorted out. The respondent missed the opportunity to provide the claimant with a written statement when he told them of it in April 2020 and a higher award is appropriate.[69]Ms Bisby submitted that the process followed by the respondent was unfair. She submitted that the appraisal notes are not a full record of what took place and that the claimant had not been told that it was a formal investigatory meeting. She further submits the claimant had a strong feeling that a decision had already been made at that meeting because the claimant realised that his position was redundant and was resigned to that fact. In addition Ms Bisby submitted that the appeal process was unfair because Mr Armstrong had chosen to look at the quietest months and had failed to provide the claimant with a breakdown of the hours he had worked following his disclosure of email evidence of work he had carried out.[70]Ms Bisby accepted on the claimant’s behalf that he had been naive in failing to declare his company car to HMRC and that he had not handled his tax affairs as well as he should have.[71]In respect of the payment of commission Ms Bisby submitted that the claimant had never had the process explained to him and that he reasonably believed that he would be paid commission for the work that he had done on those jobs secured by Mr Henderson.
The Law
[72]The relevant legislation in respect of the claimant’s claim of unfair dismissal is found at s98(1) (2) and (4) Employment Rights Act 1996 (ERA)[73]It is for the respondent to show the reason for dismissal and that it is a potentially fair reason under s98 ERA. In this case the respondent relies on the potentially fair reason of conduct. The burden of showing this is not high and once the respondent can show that on the face of it the conduct complained of could justify dismissal it will satisfy that requirement and the enquiry will move to consider the question of reasonableness under s98(4) ERA.[74]The test of reasonableness was established in British Homes Stores v Burchell [1978] IRLR 379, which requires a Tribunal to determine whether:a. The respondent had a genuine belief that the claimant had carried out the alleged misconduct? andb. Whether that belief was held on reasonable grounds, Sainsbury Stores v Hitt [2003] IRLR 23. In Shrestha v Genesis Housing Association Ltd [2015c. ]IRLR 399 the Court of Appeal confirmed that it is not necessary for an employer to investigate every incident and explanation proffered by an employee.[75]If the answer to the above is yes, the Tribunal will then consider whether the decision to dismiss for the reason given was one that was open to a reasonable employer i.e. whether it was within the band of reasonable responses Iceland Frozen Food Limited v Jones [1982] IRLR 439. It is not for the Tribunal to substitute what it would or might have done if it had been making the decision, but rather to objectively apply the test taking into account all the circumstances of a particular case and the size and administrative resources available to the employer. It is clear that every case will need to be considered on its own particular facts and it is not the case that an act of gross misconduct will always fall within the band of reasonable responses as there may be mitigating factors that would make a dismissal unfair BritoBabapulle v Ealing Hospital NHS Trust [2013] IRLR 854 EAT.[76]Similarly facts of a particular case may lead to a harsher penalty where lack of remorse or a failure to accept a wrongdoing may lead to a dismissal falling within the band of reasonable responses, Hodgson v Menzies Aviation (UK) Ltd EAT 0165/18[77]Whether a dismissal will be rendered unfair because of procedural failures will be determined in accordance with the guidance in Polkey v AE Dayton Services Ltd [1087] UKHL 8. In a claim where the reason for dismissal is conduct the employer will be expected to have carried out a reasonable investigation into the alleged misconduct and afforded the employee a genuine opportunity to know the case he has to answer and be given a fair opportunity to offer any explanation or mitigation that he may want to raise.[78]Procedural errors will not always render a dismissal unfair and the Tribunal will need to determine the issues overall having regard to the reason for dismissal. It is possible to remedy a procedural defect during the appeal process and not every procedural error will lead to a finding of unfair dismissal Taylor v OCS Group Ltd 2006 ICR 1602[79]A claim under s104 ERA will only succeed where a Tribunal is satisfied that the reason ( or if more than one the principal reason) for the dismissal was that the claimant had (for the purposes of these proceedings) alleged that his employer had infringed a right of his which is a statutory right. It will not matter if the claimant had the right or whether the right had in fact been infringed but the assertion of the right must be made in good faith.[80]A claim under s103A ERA will only succeed where a Tribunal is satisfied that the principal reason for the dismissal was that the employee made a protected disclosure. Principal reason has been held to be the reason operating in the mind of the decision maker at the time of the dismissal i.e. the primary reason Abernethy v Mott Hay and Anderson [1974] ICR 323. This is a question of fact that requires the Tribunal to determine ‘what consciously or unconsciously was the decision makers reason for dismissing’[81]In order to be protected by the provisions of s103A ERA the employee must first be able to show that the disclosure was a protected disclosure. A disclosure will only be protected if it is:a. A “disclosure of information”b. That in the reasonable belief of the worker making it is in the public interest and tend to show one of the failings set out in s43B ERAc. It must also be made in accordance with one of the methods set out in ss43C-H ERA[82]A practical example of the difference between a disclosure of information and an allegation was illustrated in Cavenish Munro Professional Risks Managament Ltd v Geduld [2010] ICR 325. This was placed in the connect of a hospital setting where a disclosure of information would be ‘ yesterday sharps were left lying around’ whereas an allegation would be ‘ you are not complying with health and safety requirements. It is however possible for an allegation to contain sufficient information to be capable of tending to show a failure, or likely failure, to comply with the legal test.[83]An enquiry or request for information as opposed to the supply of information will not amount to disclosure of information Blitz v Vectone Group Holdings Ltd EAT 0253/10 and Parsons v Airplus International EAT 0111/17[84]In addition to showing a disclosure of information has been made it is also necessary for the claimant to have a reasonable belief that it is in the public interest. This is both an objective and subjective test that requires the Tribunal to determine whether the claimant held the requisite belief and if so, whether the belief was reasonable. This test will require the Tribunal to look at all the circumstances of the case and a person with professional or insider knowledge will be held to a higher standard than a lay person Korashi v Abertawe Bro Morgannwg University Health Board [2012] IRLR 4. The reasonable belief test in relation to ‘tending to show’ is a relatively low threshold but does require a claimant to have some evidential basis for their belief as opposed to just an unfounded suspicion. It is not necessary for the belief to be correct as long as it is reasonable in the circumstances in which the claimant finds themselves. There is a difference between an assertion that “ I believe X is true” and “I believe that this information tends to show that X is true’ It is the latter not the former that is needed.[85]In respect of a reasonable belief that the disclosure is in the public interest this again is a relatively low threshold. Guidance on the factor to be considered when determining whether something is in the public interest was given by the Court of Appeal in Chesterton Global Ltd (t/a Chesterton’s) and anor v Nurmohamed (Public Concern at Work intervening) [2018] ICR 731a. The numbers in the group whose interests the disclosure servesb. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosedc. The nature of the wrongdoing disclosed andd. The identity of the alleged wrongdoer[86]Where an employee makes several disclosures the Tribunal will be required to determine whether, taken as a whole the disclosures were the principal reason for dismissal El-Merisi v Azad University (IR) Oxford EAT 0448/08[87]Where a dismissal is due to the manner in which the disclosure is made or some other fact about the disclosure as opposed to the disclosure itself , then an employee will not have been automatically unfairly dismissed. In Kong v Gulf International Bank (UK) Ltd [2002] IRLR 854 this was referred to as ‘the separability factor. Simler LJ described this at para 56 “…there may in principle be a distinction between the protected disclosure of information and conduct associated with or consequent on the making of the disclosure. For example a decision-maker might legitimately distinguish between the protected disclosure itself and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer’s computer system to demonstrate its validity”[88]A detriment has been held to exist “if a reasonable worker would or might take the view that the action of the employer was in all the circumstances to his detriment” Ministry of Defence v Jeremiah [1980] ICR 13. There is no requirement for a comparator to be shown in such cases.[89]The causative test in a detriment claim is less onerous than for automatic unfair dismissal, in that the protected disclosure need only materially influence the decision maker. The burden of proof is on the respondent to demonstrate the reason for its conduct (s48(2) ERA). The claimant must first prove on the balance of probabilities that a disclosure has been made, that a detriment was suffered and that the detriment was inflicted by the respondent. If the claimant is able to show this the burden shifts to the respondent to show the reason for its behaviour and must satisfy the Tribunal that the protected disclosure was in ‘no sense whatsoever’ on the grounds of the protected disclosure Fecitt and ors v NHS Manchester (Public Concern at Work intervening [2012 ICR 372[90]The claimant’s claim for breach of contract is brought under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 Article 3 which provides:a. Proceedings may be brought before and employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or a sum in respect of personal injury) if:b. The claim is one to which section 131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine;c. The claim is not one to which article 5 apples; andd. The claim arises or is outstanding on the termination of the employee’s employment[91]In a claim for breach of contract it is necessary to identify the term of the contract, that is relied upon whether that be oral or in writing and the to determine whether the term has been breached and is so what damages the claimant is entitled to. It is not for a Tribunal to determine what the terms of the contract should have been, it will be necessary in the absence of documentary evidence to produce evidence of the term and its application.[92]Pursuant to s38(3) Employment Act 2002, if in the case of proceedings to which the section applies the Employment Tribunal makes an award to the employee to which the proceedings relate and, when the proceedings were begun the employer was in breach of its duty to the employee under S1(1) or s4(1) Employment Rights Act 1996 the Tribunal must make an award of the minimum of 2 weeks’ pay unless there are exceptional circumstances which would make it unjust to do so and may, if it considers it just and equitable make a higher award of 4 weeks’ pay. Application of the law and secondary findings of fact Dismissal[93]In determining whether or not the claimant was dismissed for a reason other than that relied upon by the respondent, it is necessary to determine whether the claimant is able to rely on any of the rights that would make his dismissal automatically unfair if one of those reasons was found to be the primary reason for dismissal.[94]The first question to be considered is whether the claimant asserted a statutory right. It is the claimant’s case that the submission of his request for payment of commission triggered his dismissal. The right to payment of wages is a statutory right, however merely asking to be paid in the absence of anything other does not amount to an assertion of a statutory right for the purposes of s104 ERA 1996. The claimant had not brought proceedings to enforce his right to payment of commission at the time of his dismissal and so he would have to show that he had alleged that the respondent had infringed his right to be paid. The claimant submitted his request to be paid commission on 26th November 2020 and received payment for part of the amount claimed on 3rd December 2020. Whilst he did not receive the amount he had hoped for the Tribunal did not hear any evidence that the claimant raised any query or complaint about this. There is no reference to his commission in the appraisal of 14th December, when the claimant was already aware that he had not been paid what he was hoping for, and there is no reference to his commission during the course of the disciplinary hearing or in his letter of appeal. The first mention of his commission is in his letter of grievance when he states that he believed that his request to be paid commission triggered the disciplinary action against him. Looked at in the round the claimant had received only a percentage of what he had hoped to be paid, and it was now his belief that his request had triggered what he considered to be unwarranted disciplinary action. The Tribunal find that this amounted to an allegation that his statutory right to be paid ‘wages’ was infringed but note that it is asserted post dismissal and prior to the appeal hearing. The Tribunal find that it was only at this stage that the claimant satisfied the requirement of s104. However, if we are wrong and that did not amount to an assertion of a statutory right for the purposes of s104 (1) Era 1996, the Tribunal find that the requirement was subsequently satisfied during the appeal/grievance hearing of 11th January 2021 when the claimant raised the non-payment, and the claimant was told this would be investigated. The question for the Tribunal to consider therefore is whether the primary reason the claimant’s appeal was not upheld was because he had asserted a statutory right.[95]The claimant further argues that his dismissal was because he had made a protected disclosure. In order to be protected there must be a disclosure of information. It is clear that the claimant’s reference to farmer’s being reimbursed and re-invoiced when they have obtained a grant is an allegation as opposed to a disclosure of information because the claimant could give no detail of an occasion on when this had occurred or the name of any farmer involved, either when he raised it in the meeting of 11th January 2021 or at a later stage when he had been invited to provide information so that it could be investigated.[96]The second disclosure relied on is the practice whereby 3 quotes are produced to enable farmers to apply for a grant to install the robotic equipment of Lely. It would appear from the minutes of the meeting of 11th January 2021 that this is a practice that is not denied. The respondent produces a quote and two further quotes are provided on the letterheads of other Lely franchises, with the intention that the quote of the respondent will succeed. The claimant explained that practice during the meeting of 11th January 2021, and although he was unable to provide detail on that occasion it was clear that it was a practice recognised by the respondent because Ms Bacon explained that this was the only way in which farmers would be able to provide like for like quotes and that it had been discussed with the grant people. The claimant was not satisfied with the explanation because he believed that the other franchisees were not aware of the quotes that were being produced by the respondent. The Tribunal note that the claimant did not dispute what Ms Bacon said about producing quotes but instead suggested that the other franchisees did not know the respondent was producing quotes on their letterheads. The Tribunal find this second assertion amounted to an allegation only and was not a disclosure. The first allegation was a disclosure of information but the Tribunal do not find that the claimant reasonably believed that it tended to show that the respondent was failing or likely to fail in either a legal obligation and/or committing a criminal offence. The Tribunal have reached this conclusion because, on the balance of probabilities the claimant did not dispute Mr Bacon’s explanation during the meeting of 11th January 2021 and instead switched the wrongdoing to the other franchisees not being aware of their involvement – a matter that the Tribunal found amounted to an allegation only and; the claimant freely admitted that the only reason he raised the issue was because he had been dismissed. Whilst the Tribunal acknowledge that this fact goes primarily to good faith, the tribunal find, that looked at in the round it also shows that on the balance of probabilities, the claimant did not hold a reasonable belief in the alleged failings and was likely to have known that this was accepted practice. Whilst the claimant maintained in oral evidence that he had refused to play any part in the provision of quotes, there is email evidence that quotes were sent to him to alter on more than one occasion. There is no evidence of the claimant refusing to do them and the presence of repeat emails asking the claimant to do the same show, on the balance of probabilities that contrary to the claimant’s evidence that he refused to have any part in the practice, he did not refuse to do them. Consequently the Tribunal do not find that the claimant made a disclosure of information that was protected under the whistleblowing provisions.[97]It is not disputed that the claimant knowingly submitted false time sheets. There is a fundamental expectation in any employment relationship that an employee will not provide his employer with information that he knows to be false. The claimant knew when he submitted his time sheets that they did not reflect the work he had carried out on the days he said he had done it. The respondent can therefore establish that conduct is the potentially fair reason it relies on for dismissing the claimant.[98]Throughout the course of the claimant’s disciplinary process and these proceedings the claimant has shown a complete lack of understanding as to how his conduct might be seen as a serious matter. The claimant has been resolute in his opinion that the respondent can, and has managed perfectly well without time sheets and asserts that as it had managed without them from March 2020 until November 2020 they were clearly not that important. He has also admitted that this had not been the first time that he had made up time sheets and suggested that this is a practice amongst all sales advisors. He has been unable to show how he knows this to be a practice of others, and his assertion has not been supported with any documentary or oral evidence from any other source. The claimant has agreed that paperwork is not his forte and he does not keep a diary of where he has been or work that he has carried out, this may then be the reason why he was unable to produce an accurate record. Whilst he told the Tribunal that he keeps notes on his i-pad, he has not produced any evidence of this at the hearing.[99]It is accepted that prior to lockdown sales advisors were required to submit timesheets on a regular basis. The claimant explained that they had to be filled in each week but were only submitted on a monthly basis. Sales advisors were also required to enter information on the Lely Sales portal, which was something else that the claimant had failed to do, notwithstanding that he says his work was so quiet that his position was redundant. The claimant explained that his previous line manager would remind them to fill in LSP etc but that when he left this fell off.[100]It is understandable that most businesses operated differently during the pandemic and clearly time sheets would not have been expected while an employee was furloughed. However, by the time the claimant was asked to submit his time sheets he had been back working for at least a month or more. The respondent had required sales advisors to complete time sheets prior to the pandemic and as people began to return to work it was reasonable for the respondent to expect its usual procedures to be followed. There is no evidence that any sales advisor was told to abandon previous methods of record keeping on return to work.[101]The claimant worked from home and was expected to manage his own time within the framework of the respondent’s practices. The Tribunal find that there would have been an entirely reasonable expectation on the part of any employer for an experienced sales advisor to carry out his work in the way in which he had previously been instructed. The Tribunal did not accept that an experienced employee would need to be reminded of such a basic requirement of the job as suggested by the claimant. The fact that respondent had a requirement for time sheets to be completed, was indicative that it had a reasonable expectation that the records would be accurate, otherwise there would be little use in asking for them.[102]The Tribunal find that the request to provide time sheets was a reasonable and valid request that provided the respondent with the means to comply with legal obligations to keep records of hours worked. It is in other words a reasonable management request and there is a reasonable expectation that an employee will comply with the same. The fact that the claimant may believe them to be unnecessary is irrelevant. It is for an employer to decide what means it adopts for monitoring purposes and given that the trackers only show where an employee has been and not what work had been carried out it is difficult to understand why the claimant should consider the exercise unnecessary.[103]Whilst the claimant did, when questioned, admit that he had made the time sheets up, this did not detract from the fact that he had done so in the first place. When questioned about the time sheet the claimant sought to excuse his behaviour on the basis that there was an urgency in completing them because he had been told no one was going to be paid until the time sheets were completed. However, the claimant along with all the other sales advisors had been asked for this information on the Monday prior to him submitting it the following Friday. It is clear to the Tribunal from the evidence that he has given, that the claimant totally ignored the first request; he did not think that it was important, he was busy and he had bigger fish to fry. The fact that he did not bother to ask for the tracker reports offered to help him complete his time sheets, given that he kept no records, is the Tribunal find indicative of his intention to either ignore the request entirely or alternatively make them up. The fact that by his own evidence, he then spent only five minutes completing them shows the dismissive attitude to his responsibility to provide them, which he has continued to demonstrated throughout these proceedings.[104]The claimant complained that his dismissal was unfair because gross misconduct has not been proved. On the contrary the claimant admitted that he had made his time sheets up. There is a reasonable expectation that an employee will carry out management instructions with diligence and produce information that can be relied on by his employer. The claimant on this occasion knew when he submitted the time sheets that they were made up. It was only when he was asked to account for the fact that the trackers showed him not leaving Harrogate when his time sheets recorded him visiting farms outside that area, that he admitted his actions. His explanation was that he had visited the farms on different days, but this did not explain the difference in small amount of time spent at the farm recorded on the tracker to the much longer time recorded on the time sheet. The Tribunal find that such conduct would breach the duty of trust and confidence and would be an act of gross misconduct.[105]In a case of unfair dismissal however, gross misconduct does not need to be ‘proved’ but the employer is required to have a reasonable belief that the claimant carried out the misconduct. It is not disputed that Mr Henderson cross referenced the trackers and time sheets and afforded the claimant an opportunity to give his explanation before taking the decision to dismiss him. The claimant when given that opportunity was resistant to the fact that he had done anything wrong as was evident from the notes of the meetings and his evidence before this Tribunal. The Tribunal find therefore that the respondent did have a genuine belief that the claimant had carried out the alleged misconduct and that the belief was held on reasonable grounds.[106]The Tribunal then considered whether the respondent had followed a fair procedure and whether the decision to dismiss was within the band of reasonable responses. The Tribunal had regard to the fact that Mr Henderson carried out both the investigation and the disciplinary hearing. Whilst it is preferable for different people to be involved at different stages, the Tribunal had regard to the management structure at the respondent and the fact that the investigation involved both Mr Henderson and Ms Sloan. The Tribunal find that the reality of the situation was that Ms Sloan had carried out an initial investigation because it was she who had brought the issue to the attention of Mr Henderson. Whilst it would have been good practice for Ms Sloan to carry on the investigation, the claimant was not prejudiced by this because this was not a case where other people needed to be questioned it was a simple matter of cross referencing documents. In addition the claimant admitted his conduct when questioned about it[107]The claimant has also complained that the respondent failed to deal with the matter informally in accordance with the respondent disciplinary policy and instead went straight to a formal investigation meeting on 14th December 2020. The Tribunal do not find that the appraisal meeting was a formal investigation meeting. The appraisal meeting took place and was then followed by an informal questioning of the claimant about what had been discovered. If the claimant had been able to dispel the respondent’s concerns at that time it is likely that no further action would have been taken. However, he was not able to do this and given the nature of the conduct it was reasonable for the respondent to take disciplinary action. The fact that the claimant did not consider his conduct to be a serious matter was irrelevant, the conduct complained of was by any standard a serious offence and the classification of gross misconduct was appropriate irrespective of the fact that this was first time he had been disciplined.[108]The claimant clearly failed to recognise what he had done was wrong. The Tribunal find there was no lack of management instruction, the conduct which led to the claimant’s dismissal was the fact that he had submitted false time sheets. The fact that he did not have a written contract of employment would not have made any difference to the accuracy of the time sheets he submitted. The claimant also complained that others had committed more serious breaches of company policy without being disciplined. It is of course always difficult for a claimant to show that he has been treated inconsistently with others unless someone else has carried out the same misconduct in the same circumstances. The claimant has referenced employees smoking and being late amongst his examples. However, he has not been able to identify any other employee who has submitted false time sheets and therefore there is no evidence of inconsistent treatment.[109]The respondent accepted that the claimant was not in possession of the company handbook prior to his disciplinary hearing. It was purported to be attached to the email inviting him to the disciplinary hearing but was not. This was only brought to the respondent’s attention of the beginning of the disciplinary hearing. The Tribunal note that the disciplinary hearing was carried out in accordance with the ACAS code, the claimant had been formally notified and invited to the disciplinary and told of his statutory right to be accompanied; he had been informed of the allegations against him and provided with the evidence the respondent relied on in support of the allegation; he had also been notified of the potential outcome of the hearing should he be unable to provide a satisfactory explanation and had been given the opportunity to do so during the disciplinary hearing.[110]It is not disputed that the claimant did have copy of the company handbook at the appeal meeting. At the appeal meeting the claimant was once again given a full opportunity to provide an explanation and was afforded a further opportunity to provide additional documents in support of his argument that he had worked his contractual hours in November. Unfortunately Mr Armstrong was not satisfied that the claimant had been able to show this in the documentary evidence provided. In addition Mr Armstrong was not satisfied that the claimant accepted any wrongdoing and was dismissive of the need to have produced accurate records. The Tribunal do not find that it was incumbent on the respondent to produce a schedule of the hours the claimant had worked once he had submitted additional emails. The respondent explained the way in which it had approached the emails which was sufficient for the purposes of looking at the claimant’s evidence of mitigation. The claimant was dismissed because he had submitted false time sheets, which taken in the round and having regard to all the circumstances of the case was a decision that was within the band of reasonable responses for the respondent to take. Whilst there were minor flaws in the process followed, these did not render the dismissal unfair, and were in any event remedied at the appeal stage.[111]There is no evidence that the primary reason for the claimant’s dismissal or the failure to uphold his appeal, was that he had asserted a statutory right. The claimant was paid the commission prior to the disciplinary process being commenced and, in the Tribunal’s knowledge, raised no complaint about the amount received prior to his letter of grievance. The respondent has clearly evidenced conduct that warranted disciplinary action and demonstrated that during the disciplinary process including the appeal he refused to accept any responsibility for his actions and was dismissive of the allegations against him. The Tribunal find that even if the claimant had made a disclosure that was protected, the primary reason for the claimant’s dismissal was his conduct and his claims that he was automatically and unfairly dismissed under s103A and/or s104 ERA 1996 are not well founded and are dismissed. Unlawful deduction of wages/ breach of contract (Commission payments)[112]The claimant pursues his claim for commission as both an unlawful deduction of wages and a breach of contract. It was accepted by both parties that there was no formal written commission structure in place and the claimant accepted that he had never asked how the commission scheme worked. He had been working for the respondent since 23 March 2018 before he submitted his first claim for commission on 26th November 2020 and when he submitted his request to Mr Henderson he wrote: (p410) “List of equipment for consideration for commission, David I know that you have sold some of this equipment so please pay me what you think is fair”[113]The Tribunal found there was a clear understanding of the amounts that were payable by reference to equipment sold (p672), but no indication of who would be eligible for payment If more than once person had been involved. The Tribunal heard evidence from Mr Henderson that it was the person who brought the sale to fruition and whose name was on the sales contract. Whilst the claimant sought to dispute this by saying that Mr Henderson signed all the contracts, he changed his evidence when presented with evidence of the signature of other sales advisors on contracts. The Tribunal did not accept the claimant’s alternative evidence for the reasons given above and determined that the sales advisor that would be entitled to commission would be the person who had concluded the order and whose name would be on the sales order contract.[114]It was not disputed that Mr Henderson had authorised payment of commission on those contracts concluded by the claimant and he conceded that there was a further £250 owing to him.[115]The claimant has argued that he had worked many hours over and above his contracted hours in order to ensure that farmers placed orders with the respondent and did not take their business elsewhere. On this basis he believes that he should be financially rewarded for this. He accepted that this was just an assumption on his part and agreed that he had never asked whether he was entitled to payment. Having regard to the wording of the email to Mr Henderson as set out above, the Tribunal find that it is clear, that on the balance of probabilities any monies that the respondent may have chosen to pay the claimant in recognition for additional work he claimed to have done over and above his normal day to day work, for which he received a salary, would have been at the discretion of Mr Henderson.[116]The Tribunal is satisfied that in order to be eligible for payment of commission it is necessary to have completed the sales contact and be the named person on that contract. There is no evidence that commission is payable in any other circumstances and the claimant’s email inviting Mr Henderson to pay him what he considers to be fair is evidence that, on the balance of probabilities, no other circumstances exist. The monies that were properly payable to the claimant were made save for the sum of £250, which is an unlawful deduction and has now been conceded. The claimant did not have a contractual entitlement to payment of any further monies. His claim of unlawful deduction of wages succeeds to the extent that he is owed £250. For the avoidance of doubt the claimant was not entitled to any further monies either as an unlawful deduction of wages or breach of contract claim Breach of contract (company car)[117]In respect of this part of the claim the Tribunal are required to determine whether there was an agreement between the claimant and the respondent to provide the claimant with a pool car rather than a company car. During the course of oral evidence the claimant agreed that when he started work with the respondent he believed the car provided to him was a company car on which he would be liable to pay tax to HMRC. The claimant had asked to be provided with a car when he started employment because he had currently been without one of his own and had been using his partner’s car up to then. The car provided was for his sole use, he retained use of it at all times and was required to account for private mileage. Indeed there was apparently a button on the car to switch between business and private mileage.[118]The claimant however had been told by a colleague that all the cars were pool cars and consequently he did not account to HMRC for the car when submitting his self-assessment each year. He did not discuss this change in approach with the respondent or receive any confirmation that his car was anything different than he had originally agreed. The claimant had other business interests and had retained the services of an accountant to advise him. When HMRC sought to recover the unpaid tax on the benefit that the claimant had failed to declare it resulted in the benefit being added into his current tax year and result in him falling into a higher tax bracket and thus paying higher tax. His accountant advised him to seek recovery of the additional tax paid from the respondent. The claimant concedes that he did not have any discussion with the respondent about liability for tax on the car.[119]It is clear, and now accepted by the claimant, that the car he was issued with was a company car that he was allowed to use for both business and private use. On reflection he acknowledges that it was his responsibility to declare the benefit to HMRC. There was no agreement for the respondent to provide the claimant with a pool car and there was no agreement that the respondent would be responsible for any tax liability that may be incurred by the claimant for failing to account to HMRC for the benefit in kind he received.[120]The claimant’s claim for breach of contract in respect of his company car is Failure to provide a written statement of employment particulars[121]The respondent has conceded that the claimant was not provided with a written statement of employment particulars. The respondent also accepted that the claimant had brought this fact to the attention of the respondent through his general manager in April 2020 when the claimant was put on the furlough scheme. Whilst it was the respondent’s position that this omission was purely an oversight and that all other employees have a contract, the Tribunal has had regard to the fact that when the claimant told the respondent in April 2020 that he did not have a written contract of employment particulars, the respondent did nothing to remedy the matter. During the course of this hearing Mr Henderson was unable to offer any explanation for the continuing failure. The Tribunal does not agree with Mr Sanga’s submission that the failure to provide the claimant with a contract was an oversight, it may have been initially but it was not after April 2020. It is the respondent’s evidence that all other staff had contracts and it was also accepted that the claimant had brought the failure to the attention of the respondent in April 2020. The Tribunal find that this is an abject failure on the part of a respondent that was fully aware of the position yet still failed to remedy it. In such circumstances the Tribunal determined to make an award of four weeks’ pay to the claimant to reflect the extent of the failure to comply with s38 of the Employment Act 2006.
Conclusion
[122]The claimant’s claim that he was automatically and unfairly dismissed by reason of making a protected disclosure is not well founded and is dismissed.[123]The claimant’s claim that he was automatically and unfairly dismissed by reason of asserting a statutory right to be paid wages is not well founded and is dismissed.[124]The claimant was fairly dismissed. The claimant’s claim of unfair dismissal is[125]The claimant’s claim for breach of contract (company car claim) is not well founded and is dismissed[126]The claimant’s claim of unlawful deduction of wages succeeds in part. The respondent is ordered to pay to the claimant the sum of £250 being the sum of commission owing to him. (The claimant will be responsible for accounting to HMRC for any personal tax liability arising out of this payment).[127]The respondent failed to provide the claimant with a written statement of employment particulars. The Tribunal award the sum of 4 weeks’ pay in respect of that failure. The respondent is ordered to pay to the claimant the sum of £1412.31. (the claimant will be responsible for accounting to HMRC for any personal tax liability arising out of this payment)