Mr P Corfield v Hammonds Fitted Furniture: 2409274/2023

EMPLOYMENT TRIBUNALS

Case No 2409274/2023

Between

Mr P CorfieldClaimant

Hammonds Fitted FurnitureRespondent

Before

Employment Judge Thompson

In person for claimant

Date 25 October 2024

JUDGMENT

[1]The complaint of unfair dismissal is well-founded. The Claimant was unfairly dismissed.

[2]The Claimant caused or contributed to the dismissal by blameworthy conduct and it is just and equitable to reduce the compensatory award payable to the Claimant by 25%.

[3]It is just and equitable to reduce the basic award payable to the Claimant by 25% because of the Claimant’s conduct before dismissal.

[4]The breach of contract in relation to notice pay is well-founded. Case No 2409274/2023 2

[5]The Respondent shall pay the Claimant the following sums:(a) A basic award of £7,021.35.

(b) A compensatory award of £4,012.64.

[6]The above sums include the deductions under paragraphs 2 and 3 above and include a reduction for benefits received by the Claimant in the sum of £480.

[7]The Respondent shall pay the Claimant £5,000.19 by way of damages for breach of contract. This figure has been calculated using net pay.

REASONS

[1]This matter was heard before me over two days on 6th and 7th June 2024. I gave oral judgment on 7th June 2024. My judgment dismissing the claim was sent to the parties on 12th June 2024. On 10th June 2024 the Respondent made a request for written reasons for my decision. Unfortunately, I did not receive that request until it was chased up on 24th October 2024. I apologise to the parties for the delay in receipt of these written reasons.

[2]On 21st June 2023 the Claimant was dismissed by the Respondent on the grounds of gross misconduct. In this claim, the Claimant claims that he was unfairly dismissed. In addition, the Claimant brings a claim for breach of contract relating to his notice pay. He also brings claims for unpaid holiday pay and unpaid overtime.

[3]This has been a hybrid hearing which has been consented to by the parties. The Claimant has represented himself. The Respondent has been represented by Mr Baker. I am grateful for the helpful manner in which they have both presented their respective cases.

[4]I have had the benefit of a bundle running to 140 pages that was agreed between the parties. I have been taken to the important documents in the course of evidence and submissions. References to page numbers in this judgment relate to the said bundle.

[5]I have heard evidence from the following witnesses:(a) The Claimant.

(b) Mr Marc Malyon, the dismissing officer.

(d) Ms Sian Davies, who deals with the wages claims. Case No 2409274/2023 3

[6]The issues for me to determine are as follows:(a) What was the principal reason for the dismissal and was it a potentially fair reason in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)?

(b) Was the dismissal fair in accordance with s.98(4) ERA? That involves a consideration of these questions: (i) Did the Respondent genuinely believe that the Claimant was guilty of misconduct? (ii) If so, was that belief based on reasonable grounds? (iii) Had the Respondent carried out such investigation into the matter as was reasonable? (iv) Did the Respondent follow a reasonably fair procedure? (v) If all the above requirements are met, was it within the band of reasonable responses to dismiss the Claimant?

(c) Should any compensation awarded to the Claimant be reduced on the grounds that it would be just and equitable to do so under sections 122(2) and/or 123(6) of the Employment Rights Act 1996, and if so by what percentage?

(d) Should any compensatory award be reduced to reflect that the Claimant may have still been dismissed had the Respondent acted fairly?

(e) Did the Respondent breach the Claimant’s contract of employment by dismissing him without notice?

(f) Did the Respondent fail to make payment to the Claimant for holiday pay and overtime pay that had accrued prior to the termination of his contract.

Findings of Fact

[7]The Respondent is a well-known company that supplies and fits furniture. It employs some 672 people. The Claimant was employed by the Respondent from 3rd November 2008 until the date of his dismissal. He worked as a warehouse operative. He had previously worked for the Respondent as a warehouse supervisor and only ceased doing that role in around August 2022, about a year before he was due to retire. His line manager was Ken Burke. There was also another supervisor named Raffaele D’arienzo who had been in the job for a relatively short period of several months at the time of relevant Case No 2409274/2023 4 events. The Claimant was based at the Respondent’s warehouse located on the Oakhill trading estate in Manchester.

[8]On the bank holiday weekend from 8th – 10th April 2023 the Claimant needed a storage facility. This was because his neighbour had died and as a result the Claimant’s son was left some furniture. However, that furniture needed to be moved out of the neighbour’s property as a matter of urgency. The Claimant needed to store it somewhere quickly until his son could arrange a lock up. The Claimant says that he thought that he could store the furniture at the Respondent’s warehouse to which he had a key. He says that he had stored items here in the past and it had been consented to by Mr Burke. However, as his line manger was abroad on holiday he did not want to disturb him to ask for his permission. The other new manager, Raff, was also away on the bank holiday weekend. The Claimant decided that he would use the Respondent’s facility without asking, as he thought this would not be an issue as he was a former warehouse supervisor and trusted as a keyholder. He had done this in the past with Mr Burke’s approval and he did not think it would be an issue. He thought that he would have the furniture in and out quickly. He decided to store it in one of the vans that was rarely used rather than just leaving it lying about in the warehouse.

[9]The Claimant ended up unexpectedly going off work sick for a period of a few weeks after he has moved the furniture into the warehouse on the bank holiday Monday. At some point after 10th April other staff became aware that the furniture was being stored in the van. The Claimant was asked to remove it, which he promptly did, moving some of it in his car and the larger pieces (a sofa) in a small van. I am not entirely clear on the dates when the Respondent became aware of the furniture in the van or when the Claimant removed it but the documents suggest it was around the end of April.

[10]Upon the Claimant’s return to work, he was asked to attend an investigatory meeting with Mr Burke. This meeting took place on 22nd May 2023. The notes are at page 45 onwards. The Claimant was asked about efforts to get a manager’s consent before storing the furniture. There was no discussion about whether this was something the Claimant had done in the past. It was also suggested to him at this meeting that the van had a missing mileage of 84 miles between when it was allegedly last used (31st March) and when it was then next used at the end of April. The Claimant denied that he had used the work van to get the items to the Respondent’s warehouse. He said that he had used his car for the beds and the sofa was moved in a van.

[11]By way of a letter dated 23rd May 2023, the Claimant was suspended pending a disciplinary investigation. The letter is at page 53. There were two allegations. The first was that he used a company vehicle without consent (to store furniture). The second was that he had driven the company van, in order to collect the furniture and bring it back to the Respondent’s warehouse. The Claimant has always accepted that he did store furniture in a company van and that he did not ask for his manager’s consent on this occasion. Case No 2409274/2023 5

[12]I asked both Mr Malyon (dismissing officer) and Mr Thompson (appeal officer) which of these allegations they considered to be the most serious. Both men suggested that they were of equal severity. Mr Thompson upon further consideration accepted that it was more serious to drive the van without consent. Mr Baker accepted in submissions that storage the furniture was probably not a gross misconduct offence but that driving the van clearly was.

[13]I have been shown a copy of the Respondent’s disciplinary policy that was in force at the time, dated July 2020. Breach of trust is identified as a gross misconduct offence in that policy. Taking a company van without consent is not listed as a potential gross misconduct offence but Mr Baker argues that that would have been obvious. The policy also says that where gross misconduct is proven, then the only available option is summary dismissal. Mr Baker rightly accepted in submissions that this did not circumvent the section 98 test that I will refer to later. Even if an employee has committed an act of gross misconduct, the fairness or otherwise of the dismissal remains to be determined according to the statutory test.

[14]By this point in the chronology, the evidence to support the allegations was:(a) Minutes of an interview between Mr Burke and Michael Chambers (at page 43). It has been called a witness statement but it is not signed by Mr Chambers. He says that the Claimant told him that he had used the van to collect the furniture and also that the Claimant told him that he went to see Graham in the security hut to tell him to make sure he did not find anything. I am told by the Claimant that Mr Chambers retired the same day he is alleged to have made these assertions. The Claimant says that Mr Chambers told him that he was forced to say those things by Mr Burke.

(b) A statement from Raff (at page 55). Raff says that the Claimant told him that when he asked him to remove the furniture that he would get the items out the same way as he got them in, namely in his car. That statement actually corroborates that the Claimant did not use the van to get the items to the warehouse.

(c) A statement from Mr Burke (page 56) in which he claims to have viewed CCTV footage which he says showed a person who he believes to be the Claimant and his son leaving the warehouse on Monday in the works van. He says that he asked for the footage but was told it could not be given due to data protection and that it would only be provided if there was a crime number. The statement from Mr Burke exhibits various emails that are at page 41-42 which state that a crime number was needed for the footage to be released.

(d) An email from Andy Simms (page 44) (again wrongly called a statement) in which he says that the Claimant made some comment about taking a van to collect and store some furniture. Case No 2409274/2023 6

[15]It is worth mentioning at this point that the Claimant lives 1.7 miles from the warehouse. If the Claimant had used the van to go and collect the furniture and bring it back, that would have accounted for a mileage discrepancy of 3 or 4 miles, not 84 miles. The Respondent does not at any point seem to have queried why the mileage discrepancy was 84 miles and not 3-4 or investigate it. At times during closing submissions, it was implied that it was inevitable that the Claimant must have been using the van much more than for what was put to him, namely the 3-4 miles to collect the furniture, but there was never any evidence of that. It was not looked at and Mr Malyon said in his evidence that he was not sure what it had been used for.

[16]The Disciplinary Hearing took place on 14 June 2023. The notes are at page 62. My Malyon dealt with the hearing on behalf of the Respondent. It was his first disciplinary hearing. The Claimant told him what he had told Mr Burke – that he had used his car and a small van to transport the goods to the warehouse. He accepted that he did not have authorisation to store the goods and said that usually he would ask Ken. The clear implication from the question and answer on this point was that the Claimant was saying that the use of the company van was something that Mr Burke had condoned in the past but Mr Maylon did not ask for any clarification of this. He was asked if he had been to the security hut to view the footage. The Claimant replied that he had not. The Claimant disputed the that the mileage was properly recorded. He referenced an agency driver using the van and Raff not doing the proper paperwork for the mileage and put this forward as an explanation for the mileage anomaly.

[17]Mr Maylon undertook some further investigations after this meeting. The email of 16th June 2023 at page 66 provides documents to support the mileage anomaly and appears to show the van not in use from 31st March to 26th April but the mileage having increased by 84 miles during that period. He also had extremely brief meetings with Mr Burke and Raff (pages 105 and 106) in which Mr Maylon put to them the Claimant’s allegation that the van was being used without the mileage being signed off. Raff and Mr Burke both denied the Claimant’s allegation.

[18]By this point, it ought to have been obvious to the Respondent that Mr Burke, the investigating officer, was also a key witness of fact. He was the only one who had viewed the CCTV footage and he was disputing the Claimant’s defence to the mileage claim on the basis that the Claimant was wrong that mileage was never recorded. The Claimant said in his submissions that the Respondent was reliant on what Mr Burke says and that does seem to me to be the case. Mr Burke was the one who had interviewed Mr Chambers and provided a statement from him.

[19]By way of a letter dated 21st June 2023 (at page 109) the Claimant was told that his employment was being terminated on the grounds of gross misconduct. The letter confirms that both allegations were found proved and that dismissal was the appropriate sanction upon review of all of the evidence.

[20]The Claimant appealed on 25th June 2023. His letter in this regard is at page 111. He referred to the absence of what he called “hard evidence” that he had driven the vehicle. He says that he explained the missing mileage and that the Case No 2409274/2023 7 R espondent had relied “on the say of Ken Burke”. He also raised the issue of sanction and suggested that the harshest punishment he should have received was a written warning.

[21]After a delay because of an issue about whether the appeal hearing could be recorded, it eventually went ahead on 27th July 2023. Mr Thompson dealt with the appeal. Much of the discussion was about what “hard evidence” the Respondent had. The Claimant said that Mike Chambers would back him up on the mileage issue (at page 123). The Claimant also told Mr Thompson that Mr Burke had allowed him to use the van before, for personal use. Mr Thompson did not ask any follow up questions to elicit what the previous “personal use of the van” involved.

[22]The only follow up from Mr Thompson after the hearing appears to be the email exchange with Mr Burke at page 128. That seems to be nothing more than Mr Burke confirming that he and Raff both disputed that the van was ever sent out without the mileage being recorded.

[23]By way of a letter dated 16th August 2023 at page 134, Mr Thompson confirmed the original decision to dismiss for gross misconduct. He said that both he and Mr Maylon had found no evidence to support his claim that the vehicle was sent out without the right paperwork.

Applicable Law

[24]The test for unfair dismissal is set out at section 98 of the ERA. Under section 98(1) it is for the employee to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is a reason falling within section 98(2), i.e. conduct, capability, redundancy or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position in question.

[25]Once the employer has established a potentially fair reason for the dismissal under section 98(1) of the ERA, the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason. Section 98(4) of the ERA provides: “(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) Depends on whether in circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) Shall be determined in accordance with equity and the substantial merits of the case.”

[26]The test as to whether an employee acted reasonably is an objective one. The tribunal has to decide whether the employer’s decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer in Case No 2409274/2023 8 th ose circumstances and in that business might have adopted: see Iceland Frozen Foods v Jones

[1982] IRLR 439

. The tribunal must not substitute its view for that of the employer: see Midland Bank plc v Madden

[2000] IRLR 82

[27]The correct approach to fairness is based on British Home Stores v Burchell

[1980] ICR 303

. The questions for the Tribunal are these:(a) Did the respondent genuinely believe that the claimant was guilty of misconduct?

(b) If so, was that belief based on reasonable grounds? This involves a consideration of the information available at the time of the dismissal and the appeal decisions.

(c) Had the employer carried out such investigation into the matter as was reasonable? Relevant are the nature of the allegations, the position of the claimant and the size and resources of the employer.

(d) Did the employer follow a reasonably fair procedure?

(e) If all those requirements are met, was it within the band of reasonable responses to dismiss the Claimant rather than impose some other disciplinary sanction such as a warning?

[28]In deciding whether disciplinary action is appropriate and, if so, what form it should take, the ACAS Guide suggests that employers should consider:(a) (A) Whether the rules of the organisation indicate what the likely penalty will be as a result of the particular misconduct.

(b) (B) The employee’s disciplinary record, general work record, work experience, position and length of service.

[29]The employee's length of service is relevant when deciding the appropriate sanction: see Strouthos v London Underground’s Ltd

[2004] IRLR 636

, CA. Whilst acknowledging that there can be conduct that is so serious that dismissal would be appropriate irrespective of length of service, the EAT had been wrong to say that length of service was irrelevant.

[30]Under section 122(2) of the Employment Rights Act 1996, where the tribunal considers that any conduct of the employee before the dismissal was such that it would be just and equitable to reduce the amount of the basic award, the Tribunal shall reduce that amount accordingly.

[31]Under section 123(6) of the Employment Rights Act 1996, where the tribunal considers that the dismissal was to any extent caused or contributed to by any act of the employee, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable. Case No 2409274/2023 9

[32]The case law tells me that I must concentrate on the employee’s acts and I must only deduct if I can identify culpable or blameworthy conduct. The leading case is Steen v ASP Packaging Limited

UKEAT/0023/13

/ LA where the EAT identified that the Tribunal must:(a) Identify the conduct which is said to give rise to the potential contributory fault.

(b) Decide if the conduct is blameworthy or culpable.

[33]If the Tribunal finds that a dismissal was unfair, it is open to it to reduce any compensatory award to reflect that the employee may have still been dismissed had the employer acted fairly: see Polkey v AE Dayton Services Limited

[1988] ICR 142

. The tribunal needs to consider both whether the employer could have dismissed fairly and whether it would have done so.

[34]When applying Polkey, the Tribunal should consider whether the employer could have fairly dismissed and, if so, what were the chances that the employer would have done so? A Polkey deduction may take the form of a percentage reduction, or it may take the form of a Tribunal making a finding that the employee would have been fairly dismissed after a further period of employment. Alternatively, a combination of the two approaches could be used but not in the same period of loss.

[35]The tribunal is not called upon to decide the question on balance. It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done: see Hill v Governing Body Great Tey Primary School

[2013] IRLR 274

[36]The Tribunal should have regard to any material and reliable evidence that might assist in assessing just and equitable compensation, even if there are limits to the extent it can be confident about the world as it might have been; a degree of uncertainty is inevitable and the mere fact that an element of speculation is involved is not a reason for refusing to have regard to the available evidence: Software 2000 Ltd v Andrews and others

[2007] ICR 825

[37]The Employment Tribunals Extension of Jurisdiction Order 1994 provides that proceedings for breach of contract may be brought before a Tribunal in respect of a claim for damages or any other sum (other than a claim for personal injuries and other excluded claims) where the claim arises or is outstanding on the termination of the employee’s employment.

[38]A claim for notice pay is a claim for breach of contract: see Delaney v Staples

1992 ICR 483

HL. Case No 2409274/2023 10

[39]In Neary v Dean of Westminster

[1999] IRLR 288

, it was held that conduct amounting to gross misconduct justifying summary dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in his employment. The tribunal is not concerned with the reasonableness of the employer’s decision to dismiss but with whether the employee is guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract: see Enable Care and Home Support Ltd v Pearson EAT 0366/09). Application of law to the facts

[40]I now apply the law to the facts that I have found. I will deal with each of the issues that I identified at the outset. What was the principal reason for the dismissal and was it a potentially fair reason in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)?

[41]I accept the Respondent’s assertions that the reason for the dismissal was conduct relating to the two offences that I have already outlined. This is a potentially fair reason. The Claimant did suggest that the dismissal may have been pre-determined because Mr Burke had wanted him out of the company, but I found no evidence to support that. I accept that Mr Maylon did not know of any issues between the Claimant and Mr Burke that had led to the Claimant taking a step down from the supervisor role and was also unaware of Mr Burke’s alleged involvement in having another driver fired shortly before the events that I am concerned with. Did the Respondent genuinely believe that the Claimant was guilty of misconduct?

[42]The Claimant had admitted to the allegation of storing the furniture on the Respondent’s premises without the consent of a manager. I further accept that the dismissing officer Mr Maylon believed that the misconduct had taken place in relation to the second disputed allegation of whether the Claimant had driven the van to collect the furniture . He had the word of Mr Burke who had seen the CCTV. He also had paperwork to support a mileage discrepancy. He had the word of Mr Burke and Raff that the Claimant’s explanation for the mileage discrepancy was “utter lies”, to use Raff’s phrase. It is my finding that he did genuinely believe from this evidence that the Claimant had committed both acts of misconduct. If so, was that belief based on reasonable grounds after a reasonable investigation?

[43]I do not accept that Mr Maylon’s belief was based on reasonable grounds. He had, in my view, placed far too much reliance on the evidence of Mr Burke, who was by this point both the key witness of fact as well as the investigating officer. Case No 2409274/2023 11

[44]I did not accept that the investigation fell within the range of reasonable responses that that a reasonable employer might have adopted for these reasons.

[45]First, I do not understand why no attempt was made by Mr Maylon or Mr Thompson to view the security footage. This would have been an obvious avenue given that the Claimant was disputing that he drove the van. Mr Maylon explicitly asked the Claimant whether he had been to the hut to view the footage, yet did not think to do this himself. There is a difference between being allowed to copy or release the footage and going to see the footage, and I cannot think of any reason why Mr Maylon or Mr Thompson would not be allowed to view this footage in the hut but Mr Burke was allowed to. The excuse that Mr Maylon was not based at the same location as the security hut is not a good one given that this was key evidence in the case. He ought to have made the journey to view the footage. The CCTV is not just a red herring. I am mindful that Mr Burke said that he “believed” that it was the Claimant in the footage – this is not the same thing as saying that it was the Claimant. In my view it corroborates what the Claimant says about the ability to actually see faces of who is driving in the CCTV. The Claimant said in his evidence that he has seen CCTV before of the vans leaving/entering and that the cameras are angled in such a way that it is hard to actually see any faces. The Claimant had, according to the interview with Mr Chambers, been to the hut to speak to Graham to get him to “make sure they don’t find anything”. This is an extremely serious allegation – that the Claimant had tried to cover up any CCTV evidence - and I am very surprised that this coupled with the CCTV being available did not at least warrant a visit to the hut to speak to Graham and see the footage.

[46]Second, neither Mr Maylon nor Mr Thompson asked any questions of Mr Burke to test the Claimant’s account that he usually used the van with Mr Burke’s consent for personal use. Although the Claimant did not raise this in the investigation, it was raised both in the discipnary and appeal hearings. I do not understand the failure to ask Mr Burke about this, given that both My Maylon and Mr Thompson interviewed Mr Burke. This was highly relevant, as if this were a practice condoned by the Claimant’s manager, that would clearly have a bearing on the outcome. They did not ask the Claimant any details of what had usually happened in the past. The Claimant in fact said in his evidence that he had not only been allowed to store items but had been allowed to drive the van before. It was suggested to me in closing submissions that it was implicit that Mr Burke would not agree that he had previously given permission to use or drive the van. I do not accept this and Mr Burke should have been explicitly asked about this very important issue.

[47]Third, they did not interview Mr Chambers. This was relevant because his statement was at odds with Raff’s account– he says the Claimant told him that he had used the van to move items whereas Raff said that the Claimant had told him that he had bought the items in his car. There was no signed statement from him. I find it particularly concerning that this avenue was not pursued given that the Claimant was repeatedly saying that the Respondent was just taking Mr Burke’s word for everything and relying on hearsay. Mr Burke was the investigating officer who interviewed Mr Chambers but it also later became clear that he was the key factual witness and so for this reason alone Mr Case No 2409274/2023 12 Chambers ’ evidence ought to have been confirmed by Mr Maylon or Mr Thompson. The Claimant had also made it clear in the appeal hearing when Mr Thompson was pushing him for hard evidence that Mr Chambers would support him on the mileage issue. No attempt was made to see if this was correct. The Claimant had identified a corroborating witness on a key issue.

[48]Fourth, they did not pursue any enquiries as to why if they believed the Claimant had driven the van to collect the furniture from his neighbour the mileage discrepancy would have been 84 and not 3 or 4 (the mileage that it would have taken to collect the furniture from the Claimant’s house and take it to the warehouse). The fact that the excess mileage was so much higher than this journey potentially corroborated the Claimant’s account that the mileage was not being properly recorded. The Respondent seems to have come to the conclusion that it was the Claimant who drove the van some 84 miles without actually investigating this or even asking the Claimant any questions about it.

[49]I formed the impression that both Mr Maylon and Mr Thompson thought that the Claimant should be the one looking for “hard evidence” to disprove the case against him. Their focus was on Mr Burke, who seems to have been contacted multiple times, and Raff. The other witnesses and potential witnesses seem to have been ignored as possible lines of enquiry. The Respondent was the one who raised the allegations, and given the Claimant’s denial the onus was on them to explore reasonable lines of enquiry. I cannot see why, given that the Respondent is a company that employs over 600 people and has an HR department, that these obvious additional steps were not taken. I do not accept that this is me holding the Respondent to a standard of perfection. I find that these are obvious enquiries that any employer keeping an open mind would have looked into and the failure to look into these matters amount to a failure to carry out a reasonable investigation. Did the Respondent follow a reasonably fair procedure?

[50]The only issue raised in this regard related to the failure to sign and date the minutes of the disciplinary and the Claimant did not really explore this in his questions. The Claimant has not pointed to anything that he says was wrong with those minutes.

[51]I do however find that Mr Burke ought not to have been the one investigating this given that he was also the key witness of fact. At the very least, once it became clear that he was a key witness of fact the investigation ought to have been looked at with a fresh pair of eyes and/or the witnesses who were interviewed by Mr Burke ought to have been reinterviewed to ensure fairness. If all the above requirements are met, was it within the band of reasonable responses to dismiss the Claimant?

[52]The Respondent has accepted in closing submissions that storing items at the Respondent’s facility without consent was probably not a gross misconduct offence. However, the Respondent says that the second offence was a gross misconduct offence as it was clearly a breach of trust to drive a company vehicle Case No 2409274/2023 13 without consent. They argue via Mr Baker that this is because: it involved a deception; that it involved a third party being on premises during non-working hours; that it meant that the vehicle was possibly uninsured; and that an unavoidable consequence of the finding in this regard was that the Claimant had driven the van for much more than the 3-4 miles to collect the furniture. .

[53]I do accept that driving a company van without consent is a potential gross misconduct offence. That said, it has been assumed that the vehicle would have been uninsured but Mr Maylon did not have any evidence to confirm that was the case. I also do not accept that it was obvious, in the absence of a written policy, that the van could never be used for personal use, given the Claimant’s evidence that he had done this before and it had been condoned.

[54]However, even if this was potential gross misconduct, what is wholly missing in making the decision to dismiss was any consideration of mitigation. It is my finding that there are a number of highly relevant factors that were wholly ignored. First, the Claimant had worked for the Respondent for 15 years and had an exemplary service record. Second, the Claimant had previously been a supervisor. Third, the Claimant had said (and there was no evidence to dispute) that his manager had allowed him to use the van for personal use before. Fourth, there is no written policy that I have been shown which suggests that it is against company policy to use the use the van.

[55]It is my conclusion that the decision to dismiss was not within the reasonable band of responses because none of these highly relevant factors were taken into account by Mr Maylon when he made the decision to dismiss the Claimant. I fully understand that I am not allowed to substitute the decision. However, I do not accept that a reasonable band would include dismissal in circumstances where the Claimant had worked there for 15 years, was trusted as a key holder, had worked as a supervisor until recently, and had an exemplary disciplinary record. Moreover, he had said at both the disciplinary and appeal stage that his manager usually allowed him to use the van for personal use and he gave an explanation as to why he had not on this occasion sought the permission of his manager. Although Mr Maylon suggested in his evidence that he would be surprised that a manager had allowed personal use, he did not bother to ask Mr Burke if this were the case and the Respondent has not produced any documents to show that this was against company policy or that this was the type of offence that it would dismiss for. In my view Mr Maylon and Mr Thompson have focused their enquiries purely on whether the Claimant committed the offences alleged and ignored the part of the decision making where they ought to have balanced their findings that the Claimant had committed the misconduct against the mitigating features that I have already outlined. They have clearly ignored highly relevant factors in their decision-making process. Should any compensation awarded to the Claimant be reduced on the grounds that it would be just and equitable to do so under sections 122(2) and/or 123(6) of the Employment Rights Act 1996, and if so by what percentage?

[56]The Claimant admitted to storing goods in the Respondent’s van without asking for permission. I do consider that this is contributory conduct, but I also take Case No 2409274/2023 14 note of the fact that the C laimant gave a reason he did not contact them (this being the bank holiday weekend) and his evidence that they had allowed him to do this in the past. Balancing those factors, I make a reduction of 25% for contributory conduct.

[57]I do not accept that the Claimant’s failure to assist at the various meetings was contributory conduct. He answered all questions that were asked of him. It was the Respondent’s job to look at all reasonable lines of enquiry and they failed to do so.

[58]I also do not accept that the Claimant was not contrite and he ought to have been. He admitted to the first allegation and disputed the second one. Should any compensatory award be reduced to reflect that the Claimant may have still been dismissed had the employer acted fairly?

[59]I have to consider whether the Respondent may still have dismissed the Claimant even if the additional investigations or a fairer procedure had taken place. I am not convinced that the CCTV would have shown the Claimant driving the van. The Claimant told me that the angle of the CCTV does not show faces. Mr Burke’s statement was equivocal. He said he believed that it was the Claimant and his son, not that it was, which supports what the Claimant says about the quality of the footage. I am also not convinced that interviewing the witness would have helped the Respondent. The Claimant believed that the witness would have supported him and that the witness had been forced to say those things by Mr Burke. In any event, even if the Claimant had been found to be driving the van, I still consider that a decision to dismiss him would have been outside the reasonable range of responses given the substantial mitigation that I have already referred to. I therefore do not make any reduction for Polkey. Did the Respondent breach the Claimant’s contract of employment by dismissing him without notice?

[60]I find that on a balance of probabilities the Claimant was not guilty of any conduct that was so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract. Did the Respondent fail to make payment to the Claimant for holiday pay and overtime pay that had accrued prior to the termination of his contract?

[61]I have seen no evidence of any non-payment of holiday pay or overtime pay and I reject those claims. The Claimant did not cross examine the Respondent’s witness on this point and was not able to give me any assistance as to what the amount was that he believed was owed to him or how I should calculate that. Case No 2409274/2023 15 Employment Judge Thompson Date 25th October 2024