M Williams v TC Engineering Glossop Ltd: 2408959/2023
JUDGMENT
[1]The Claimant’s claims for ordinary unfair dismissal and automatic unfair dismissal are not well-founded and are dismissed.REASONS
[1]By way of his ET1 claim form received by the Tribunal on 22nd August 2023, the Claimant, Mr Michael Williams, brings claims for unfair dismissal against the Respondent, TC Engineering Glossop Limited, following the events set out below that occurred in and around May 2023. The Respondent is an engineering company based in Glossop which manufactures and maintains equipment for various local companies; the Claimant was employed as a driver between August 2020 and May 2023 and, according to the ET3 response form [17-26], the Respondent employed twelve people at that time. Case No. 2408959/2023 2[2]During the two-day hearing, the Claimant was represented by his solicitor, Mr Sajjadul Islam, and the Respondent by its managing director, Mr Steve Birch. Having heard evidence and submissions, the matter was listed for a third day just under two weeks later for deliberations and delivery of an oral judgment, a timeframe which we did not consider had any impact on our ability to decide the case appropriately. During the course of the hearing and when considering our decision, we had an agreed hearing bundle running to 97 pages and any references to specific pages of the hearing bundle herein will be by way of square brackets, for example [78] or [34-54]. We also received witness statements from the following witnesses and considered them all during our deliberations, although we only heard oral evidence from the first four:a. The Claimant, Mr Michael Williams (undated);b. Steve Birch (director of the Respondent) (3rd May 2024);c. Gavin Hyde (joint general manager of the Respondent) (11th May 2023);d. Tony Gorman (joint general manager of the Respondent) (15th May 2023);e. Ross McGawley (employee of the Respondent) (26th September 2023);f. Simon Barrow (employee of the Respondent) (26th September 2023);g. Richard Halliday (employee of Avanti, next door to the Respondent’s premises) (undated);h. Michael Clere (delivery driver) (undated);i. Chris Allen (employee of Regallen Glossop, adjacent to the Respondent’s premises) (undated); andj. Philip Wilson (employee of the Respondent) (undated email).[3]We directed that only issues of liability (including any question of a Polkey deduction or a deduction for contributory fault) would be dealt with at the hearing as it was only listed for two days and that, if any or all of the claims succeed, remedy will be dealt with separately thereafter. The legal framework is summarised below.[4]At the start of the hearing, we noted the contents of the hearing bundle and Mr Islam was asked to confirm whether the claim was limited to unfair dismissal (albeit that Case No. 2408959/2023 3 there were two strands consisting of ordinary unfair dismissal and unfair dismissal arising from a public interest disclosure (“PID”)) or if there was any element of detriment other than dismissal arising from a PID. It was unfortunately very difficult to extract a clear response from Mr Islam, who did not initially appear to understand the concepts involved, but, after a number of attempts, we understood the position to be that only dismissal was being asserted and that all other information was there by way of background and not as the basis for any claim of a specific detriment.[5]During the exchange about the basis of the claims, Mr Islam asserted that there may be an alternative claim of constructive unfair dismissal but, when it was pointed out to him that this had never been raised before in the proceedings, there followed a discussion at the conclusion of which Mr Islam was asked to clarify if there was any assertion of constructive dismissal, which he said there was not. In order to ensure that the matters in issue were clear, Mr Islam was asked to confirm if he agreed on behalf of the Claimant that, if the Tribunal were to find that he had resigned and had not been dismissed, the claim must fail. Again, it was unfortunately very difficult to extract a clear response from Mr Islam but, eventually, it appeared that he did agree with what appeared to us to be a rather self-evident proposition.[6]We were then asked by Mr Islam to consider whether the Claimant could rely on a supplementary bundle and a further witness statement from the Claimant, both of which had been sent to the Respondent and the Tribunal three days before the hearing and for which there had been no permission sought or granted by the Tribunal. Mr Islam explained that the contents were relevant because they responded to information about the question of dismissal or resignation in the Respondent’s witness statements and noted that the Claimant was not legally represented prior to this, although Mr Islam did accept, when it was pointed out to him, that there had been legal representation in place since July 2024. No reason was provided for why the information contained within the new statement and bundle could not have been provided earlier. When Mr Islam was asked why any of it was relevant, he told us that it showed that the Claimant had received a job offer after he left the Respondent’s employment but was unable, after being asked a number of times, to explain why this may be relevant to the issues in dispute and simply made unclear references to “credibility”. On behalf of the Respondent, Mr Birch confirmed Case No. 2408959/2023 4 that he opposed the application to rely on the additional documentation on the basis that it was irrelevant and had, in any event, been provided very late without permission from the Tribunal.[7]After retiring briefly to consider the application, a short oral decision was delivered which set out our reasons for refusing the application to rely on the additional bundle or witness statement, such including: the late stage at which it was produced; the absence of any cogent explanation as to why it was so late; the absence of any cogent explanation as to why it may be relevant given that it sought to adduce new evidence on what was clearly always a central issue in the case (namely whether the Claimant resigned or was dismissed); the fact that the Claimant had legal representation since July 2024; our finding that none of the new information could objectively be seen to underine the Respondent’s account; the fact that the majority of the bundle appeared to relate to the Claimant’s financial position so was only potentially relevant to the question of remedy, which was not being determined at this stage; the reality that much of the information would likely be elicited from the Claimant in cross-examination and any re-examination in any event and that, as conceded by Mr Birch, the Respondent would be unable to go behind much of it on a factual level; and, finally, that there was an email exchange within the bundle which was, effectively, a discussion between the parties about the matters in dispute which should never have been put before the Tribunal in the first place and which we subsequently ignored.The Issues to be Determined
[8]Following (and largely despite) the discussions outlined above, it was clear to us that the list of issues set out in the case management order of Employment Judge Ainscough dated 23rd January 2024 [27-34] would satisfactorily encompass the issues that we had to determine in order to dispose of the claim justly (excluding any potential issues of remedy). As such, we had in mind throughout the hearing the following issues, as set out in Judge Ainscough’s order: Unfair dismissal1.1 Was the Claimant dismissed? Case No. 2408959/2023 51.2 If the Claimant was dismissed, what was the reason or principal reason for the dismissal? Was the reason or principal reason for dismissal that he made a protected disclosure?1.3 If so, the Claimant will be regarded as unfairly dismissed.1.4 If not, was it a potentially fair reason?1.5 Did the Respondent act reasonably or unreasonably in all the circumstances, including its size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?1.6 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. Protected disclosure2.1 Did the Claimant make one or more qualifying disclosures as defined in Section 43B of the Employment Rights Act 1996? The Tribunal will decide:2.1.1 What did the Claimant say or write? When? To whom? The Claimant says that he made disclosures on these occasions: 2.1.1.1 The Claimant says that he made disclosures between May 2022 to January/February 2023 to Mr Hyde and Mr Gorman about health and safety concerns in regard to the removal of human waste into the general waste water drain;2.1.2 Did he disclose information?2.1.3 Did he believe the disclosure of information was made in the public interest?2.1.4 Was that belief reasonable?2.1.5 Did he believe it tended to show that the health or safety of any individual had been, was being or was likely to be endangered?2.1.6 Was that belief reasonable?2.2 If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to his employer. Findings of Fact: Events on 11th May 2023[9]The facts which we considered relevant to the determination of the Claimant’s claims are set out below. Where they were not agreed and we were required to make Case No. 2408959/2023 6 findings, we did so on the balance of probabilities and have set out, to the extent required, how we came to those findings. For the avoidance of doubt, we did not find any of the witnesses to have been dishonest or intentionally misleading; we were conscious throughout of the inevitable frailties of human memory and that we were dealing with matters which took place approximately eighteen months previously which we had to examine in great detail in order to do justice to the case. There were actually very few factual disputes in this case, and even fewer that were fundamental to our decision, such that much revolved around our application of the settled law to the facts before us.[10]As noted above, the Claimant worked as a driver for the Respondent between August 2020 and May 2023. It was agreed that, prior to May 2023, there had been no disagreements, fallings-out or disciplinary issues involving the Claimant.[11]On 11th May 2023, which was a Thursday, the Claimant arrived at work as usual and was asked to carry out a driving job. The details of that task were not important and we made no specific findings on exactly what was involved. What was important was what happened when the Claimant arrived back at the depot although, again, the exact details were not important and were largely agreed. There was clearly an argument, a very heated and foul-mouthed argument from both sides, between the Claimant and one of his managers, Gavin Hyde. In respect of what we found happened during this conversation, we heard evidence from both the Claimant and Mr Hyde and there was, in reality, very little in dispute about what was said.[12]The Claimant told us that there was an argument between them after Mr Hyde queried where the Claimant had been for what he deemed to be a long period of time and the Claimant told him that he had been doing what he had been asked to do. The argument escalated and, according to Mr Hyde, the Claimant said “oh fuck off, I’m off” and walked away. The Claimant, in his witness statement, said that he walked away “as he could sense the situation getting out of control”. When asked in cross-examination if he agreed with Mr Hyde’s account (which was corroborated by Ross McGawley and Simon Barrow in their statements), the Claimant said that he did not agree with it and said that he just said something to the effect of “I’m not having this, being spoken to like this, I’m off”. When asked what exactly he disagreed Case No. 2408959/2023 7 with, the Claimant initially told us that he did not say “fuck this” , although he did accept that both he and Mr Hyde used the word “fuck” a number of times during the argument; when this was explored further with him, he vacillated between being certain that he did not say “fuck it, I’m off” to saying that he did not recall saying it. However, in any event, the Claimant did readily accept that he had said something to the effect of “I’m not having this, I’m off”. We found the Claimant’s evidence to be rather unsatisfactory in this regard and we found that he did not recall the conversation as clearly as he had told us and, in fairness to him, as clearly as he genuinely thought that he did prior to being asked detailed questions about it. We considered it to be irrelevant what the exact wording was: either the Claimant said, without swearing, that he was “not having it” and “I’m off” or he conveyed the same message with the additional use of an expletive. In any event, the tenor of the Claimant’s parting comment was effectively the same according to both him and Mr Hyde and we were satisfied that there was no need to attempt to make more detailed or specific findings in the circumstances of this case.[13]The Claimant then gave an account of his actions after the argument and we were satisfied that his own account to us in his oral evidence (which was not set out in any detail at all in his witness statement) was not in dispute given what we heard from the Respondent’s witnesses. In summary, the Claimant told us, and we found, that:a. He took his phone charger out of his van and walked off the Respondent’s premises in his work overalls;b. He did not return to work for the rest of the day (which was a Thursday), the argument having happened first thing in the morning;c. He did not go into work at all on Friday, the next day;d. He did not arrive at work on the following Monday until 8:30am (he did not work weekends) even though he was due to start at 7:30am;e. He did not contact anyone to say that he would not be coming in or why;f. Nobody contacted him on the Thursday after the argument, on the Friday or before 8:30am on the following Monday; and Case No. 2408959/2023 8g. He wanted to let matters “calm down” and allow his managers (Mr Hyde and Mr Gorman) to discuss what had happened between them and he knew that Mr Gorman would not be in work on the Friday so would allow them time to discuss it on the Monday morning before he came in. Findings of Fact: Was There a Public Interest Disclosure?[14]As noted above, the Claimant’s case was that he had been dismissed after raising certain issues with his employer in respect of health and safety issues. In his witness statement, at paragraph 3, the Clamant asserted that he was asked “[a]round one year ago” by Mr Hyde to clean a grit rake (a large item of metalwork used in sewage treatment plants) and refused to do so because it was extremely unclean (there being human faeces, condoms and sanitary items around it), he had no appropriate protective clothing and he had not been given any training on how to deal with such unsanitary tasks. The Claimant also said in his statement that “the company was in [his] view not equipped to dispose of this waste i.e. this would flow in to the river behind the factory”.[15]Mr Hyde told us that he did not recall any such discussion with the Claimant and did not recall ever asking him to clean a grit rake. In cross-examination, the Claimant told us that this incident took place in approximately May 2022 and was the only time he had been asked to clean a grit rake. He then said that, after being asked to do this, he refused, was told by Mr Hyde that he will do what he’s told and then refused again, after which Mr Hyde said that he would get someone else to do it and “stormed off”. When asked specifically if there was any follow-up to this conversation or if anything else was said between them, the Claimant said that there was not.[16]Given the contents of his witness statement, which differed significantly from his account in oral evidence, that part of his statement was put to the Claimant and he responded that yes, he “would have said that”. When asked to clarify if he did say what was set out in his statement, he then said that he “definitely” said it. However, he then changed his account again and said that he thought he just said that it was disgusting and that he was unwilling to do the job as it shouldn’t be in the yard and then did not say anything further. When the contents of his statement were then put Case No. 2408959/2023 9 to him again, the Claimant told us that if this is what was in his statement, he probably did say it.[17]This appeared to be the totality of the Claimant’s evidence on whether he made a PID and it was, we found, wholly unreliable. The Claimant’s account in his witness statement was very different from his oral evidence and that oral evidence was, itself, self-contradictory to the point that it was clear to us that he was unable to recall what he did or did not say in response to, and after, this alleged instruction to clean the grit rake. It was notable that the Claimant’s witness statement was undated such that, when he effectively told us that what was in it must be correct, we were unable to place any significant weight on that as it was unclear how recently it was written in any event. In considering this issue, we also referred to box 8.2 of the ET1 claim form [11], which set out the details of the claim; the only reference to a PID here was the Claimant’s assertion that “over the last few months of [his] employment with TC [he] was treated differently and unfairly, [he] feel[s] that this is due to [his] raising environmental and safety concerns, [he] asked about policies and procedures and ways of reporting concerns to be told that it wasn’t [his] place and to mind [his] own business”. This was a very general assertion and it provided to detail whatsoever, particularly in respect of the purported conversation around the cleaning of the grit rake.[18]In circumstances where Mr Hyde told us he had no recollection of any such conversation and the Claimant’s account was as unsatisfactory as it was, we were unable to make any findings save that the Claimant was, at some stage around May 2022, asked by Mr Hyde to clean a grit rake and had refused to do so, saying that it was disgusting. We found that this was a single discussion and that there was nothing more said about it by the Claimant save for his later mentioning to colleagues that he felt they should not be required to undertake such a task. We did hear evidence from the Claimant in respect of his views about the unsatisfactory drainage at the Respondent’s premises and how this risked contaminants being fed into the local water supply but he did not at any stage tell us that he had raised these concerns with anyone in a senior position. For the avoidance of doubt, we did not make any findings on the issue of the drainage layout as we did not consider it necessary, the Respondent did not accept the criticisms as valid (it being suggested Case No. 2408959/2023 10 that the Claimant did not have a proper understanding of the layout in any event) and we had no expert evidence as to what would be appropriate in the circumstances. Relevant Law and Conclusions: Resignation or Dismissal?[19]Section 94 of the Employment Rights Act 1996 (“ERA”) confers on the Claimant the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under Section 111. The Claimant must therefore show that he was dismissed by the Respondent under Section 95 and, in the instant claim, the Respondent asserts that the Claimant was not dismissed but, to the contrary, resigned. When considering this fundamental issue, we noted that the relevant legal principle did not appear to be controversial between the parties and can be summarised as being that, in deciding whether the Claimant resigned or was dismissed, we must look at the factual scenario in front of us and determine what the objective, independent and reasonable observer to the exchange would think.[20]The reason this test is so important is that we considered that we could not, as a matter of law, take into account what was in the Claimant’s mind at the time if he did not say anything about it to anyone else; this is because the objective observer would not know what is in the Claimant’s mind and could only assess the situation on the basis of that they saw or heard. In that situation, we found that there was an employee who has had an argument with a manager, said words which may suggest that he is resigning and then did not come back into work the next day, did not call, leave an answerphone message, send an email or send a text message that day or over the weekend and did not come into work until an hour after his start time on the Monday. Whatever may be said about the Respondent not contacting the Claimant (in respect of which we found that they genuinely believed that the Claimant had resigned so could not reasonably be expected to have contacted him for that reason), we considered that the “heat of the moment” argument only works for so long. In the specific circumstances of this case, after three days, even if it was a heated argument, the Claimant had more than sufficient time in which to correct or clarify the situation (which was, ultimately, his responsibility in the circumstances and not the Respondent’s) but he did not. Case No. 2408959/2023 11[21]Taking into account the matters set out above and the findings we made both in respect of what happened and how we considered the objective observer would interpret what they saw, we found that the Claimant resigned and was not dismissed. There was no claim for constructive dismissal. As such, the claims for unfair dismissal must fail. Relevant Law and Conclusions: Public Interest Disclosure and Automatic Unfair Dismissal[22]In the event that we were incorrect and the Claimant had in fact been dismissed, we went on to consider if he had made a PID. As noted above, we found that the Claimant had, on one occasion, refused to carry out a task on the basis that it was unsanitary and we kept in mind the relevant factors listed in Section 43B of the ERA set out in the list of issues (replicated at paragraph 8 above). On the basis of this finding of fact, we determined that the Claimant did not “disclose information” in relation to health and safety matters and had simply refused to carry out a task. It may well have been in the Claimant’s mind at the time that there were health and safety issues in play but, crucially, we found that he did not say this to anyone either at the relevant time or thereafter in a manner which could be construed as the disclosure of information.[23]In case we were wrong about the absence of a disclosure of information, we went on to consider whether the disclosure was made in the public interest. Again, the Claimant may well have subsequently considered there to be health and safety issues in play which he considered to be relevant to the larger public interest but we found that he said nothing at the time which could be construed as being anything other than a refusal to carry out a task which he considered to be unsanitary. In those circumstances, we considered that the public interest element of the test was not satisfied.[24]In these circumstances, even if (which we found not to be the case) the Claimant had been dismissed, we found no basis upon which it could be said that it was an automatically unfair dismissal arising from a protected disclosure as set out in Section 43B of the ERA. Case No. 2408959/2023 12 Conclusions and Disposal of the Claim[25]For the reasons set out above, we found that the Claimant resigned from his employment and was not dismissed; as such, it was our unanimous view that the claims for both ordinary and automatic unfair dismissal must therefore fail. There was no claim for constructive dismissal. If we were incorrect about the fact of resignation, we also considered, unanimously, that there had not been a protected disclosure in any event.[26]As a consequence, the Claimant’s claims for both ordinary and automatic unfair dismissal failed and judgment was given accordingly.