ON COSTS The respondent’s application for costs pursuant to Rules 74(2)(a) and (b) of the Employment Tribunal Rules of Procedure 2024 is refused.
REASONS
[1]At a public preliminary hearing which took place on 19 May 2025 the claimant's application to amend his claim to include a claim of automatic unfair dismissal, based on a public interest disclosure, was refused. Oral reasons were given at the time and were summarised in a note of the hearing sent to the parties thereafter. At the end of that hearing the respondent advised that it wished to make an application for payment of its costs, which the claimant had been notified about prior to the hearing. It was not possible, in view of the time to consider that application that day, and in any event, I considered that full grounds for the application needed to be provided to the claimant and that he be given the opportunity to respond. I gave the respondent 14 days within which to file such an application.[2]That application was received on 2 June 2025 and the claimant provided his response and evidence of his means by way of an email dated 30 June 2025. Both parties asked that this application be dealt with on the papers, and without the need for a further hearing on this issue.[3]The respondent's written application includes a chronology, the findings that I made at the hearing in respect of the application to amend, and its submissions as to why an order for costs should be made. That application is made pursuant to rules 74(2)(a) and 74(2)(b) being that the respondent submits that the claimant has acted vexatiously and wholly unreasonable in the way the proceedings have been conducted and further that his application to amend had no reasonable prospects of success. It says that in making his application in this manner, the claimant has caused the respondent to incur unnecessary and substantial legal costs. It provides a schedule of the costs incurred which total £9342.55. It seeks an order in that amount.[4]The claimant objects to the application and sets out his submissions in his email. In doing so he also provides details of his financial affairs and ability to pay any award.[5]I do not repeat here the full contents of respondent's submissions, or those of the claimant. Those documents together with my note of the preliminary hearing which summarises the reasons for my decision not to allow the amendment of the claim are available for both parties to refer to. I have considered each of these in my considerations as to whether to make any order for costs.
Findings of Fact
[6]The findings of fact relevant to this application are as follows: The claimant received legal advice that his whistleblowing complaint did not have reasonable prospects of success.[7]The claim was issued on 25 September 2023 by the claimant's representative, Nick Gerard of USDAW. Prior to the claim being issued, the claimant advised the union and their solicitors that he believed his dismissal was because he had raised public interest disclosures related to health and safety. He remained firmly of that view. He was advised by the unions’ solicitors that his complaint of automatic unfair dismissal by reason of public interest disclosure did not have reasonable prospects of success. As such, the claim issued was an ordinary unfair dismissal complaint, and not one of public interest disclosure. The claimant waved his privilege in respect of this correspondence for the purposes of the amendment application. The claimant was advised by the Tribunal and the respondent that his application had difficulties[8]On 5 March 2025 the Employment Judge Leach wrote to the claimant in respect of his application to amend his complaint and brought to his attention the potential difficulties with such application. Within his letter he commented: ‘The claimant should consider carefully whether it is in his interest to pursue this application. It is a difficult one for him to make at this late stage and even if he succeeds with the application, it may not provide any additional remedy (depending on the extent of his financial losses arising from the dismissal). Further, the application will require a very significant delay to the final hearing.'[9]The claimant chose to proceed with his application and on 2 May 2025 the respondent wrote a detailed letter to the claimant warning him that it would apply for its legal costs. Within that letter it set out its reasoning, which included the significant difficulties the claimant would have in his application to amend, which accorded with the Tribunal's later findings. It further confirmed that its costs to date were in the region of £2000 but could be closer to £9000 if the amendment application was pursued. Further it confirmed that in making the application at this stage the final hearing could not proceed on 19 and 20 May 2025 which would cause unnecessary delays and significant increase legal fees for the respondent.[10]The application was heard on 19 May 2025. In refusing the application one of my findings was that it was highly unlikely that a Tribunal would find that it was not reasonably practicable for him to have brought his complaint in time. The claimant had not read the draft claim form sent to him by his solicitors prior to it being submitted. He did therefore not notice that it did not include his whistleblowing claim.[11]The claimant is a Bulgarian national, English is not his first language, and he had difficulties in understanding and speaking English. He required an interpreter at the preliminary hearing before me. Although he may have had problems in understanding English, the claimant accepted that his wife assisted him with his claim and the written documents he submitted. I found that she would have been able to assist him if he had asked at that time. It was not until his solicitors were no longer acting for him in January 2025, 15 months later, that he realised his claim had been put forward without including a whistleblowing allegation. I found that had he read the original draft form before it was submitted and amended it at that stage, his complaint would have been in time. As such I found that it was highly unlikely that a tribunal would find that it was not reasonably practicable for him to presented it in time. In any event even if a Tribunal found that it wasn’t reasonably practicable, I considered that it was also highly unlikely to find that the claim was brought in a reasonable time thereafter.[12]I also found that although the claimant made his application to amend the claim in February 2025 (15 months after his original claim was submitted), which was shortly after he realised that his whistleblowing claim had not been included in the original complaint, the outcome was that the final hearing had to be vacated at a time when all parties were ready for it to take place. The timing of the application therefore had consequences upon the tribunal and the respondent. I found that that could have been averted had the claimant either reviewed the original draft complaint form or, at sometime between September 2023 in January 2025, looked at the claim that had been submitted on his behalf, but he did not do so.[13]The consequences of the claimant’s application to amend were that the final hearing listed for 19th and 20 May 2025 could not proceed. This was in circumstances where other than the exchange of witness statements, all parties were ready. A final hearing is now listed for 21st and 22 October 2025. Further the respondent was put to the time and cost of responding to and attending the preliminary hearing in order to oppose the application to amend. Claimant’s ability to pay[14]The claimant has provided details of his income and benefits. He earned £43,374 in 2024/2025. He has also been in receipt of universal credit in varying amounts between £0 and £1259.00 per month. The claimant produced evidence that he had a Breathing Space arrangement with the Insolvency service between 2 December 2021 and 31 January 2022 but it appears that is not continuing. The only update he provided was that he was unable to access his account because the insolvency service reported that they had been told that he had been declared insolvent. That would reflect his further evidence that he is subject to a Debt Relief Order, which is formal insolvency order. He says that is still effective but has produced no evidence to that effect. He says that it will stay on his credit record until January 2028 which restricts his financial ability.[15]The Gov.uk website states that: A Debt Relief Order (DRO) is a solution to deal with personal debts you cannot pay. You apply through an approved debt adviser and have to meet certain eligibility criteria. A DRO normally lasts 12 months. If approved, you stop making payments towards the debts (and interest) listed in the DRO during that time. After the 12 months, you will not have to pay these debts anymore. A DRO stays on your credit reference file for 6 years from the date it was approved, which is the same for other debt relief options. The debt adviser will check if you meet the eligibility criteria – free of charge. They will assess your situation and look at your income, debts, and belongings. You are eligible for a DRO if youa. owe less than £50,000 in totalb. have savings or valuable items worth less than £2,000 in totalc. own a vehicle worth less than £4,000 (if you were to sell it today)d. do not have enough money left at the end of the month to make your debt repaymentse. have lived or worked in England and Wales in the last 3 yearsf. are not currently bankrupt, have an interim order or an individual voluntary arrangementg. have not had a DRO in the last 6 years[16]Although the claimant has not provided confirmation of his assets, I find that in view of the restrictions to obtain a DRO and following a DRO, the claimant is unlikely to have any assets of any significant value.[17]The claimant has not provided details of his outgoings but is the sole provider for his wife and two children and that an award of £9,342.55 would impose extreme financial hardship.
The Law
[18]The power to make a costs order is contained in the 2024 Employment Tribunals Rules of Procedure. Rule 74 states so far as relevant: “74. When a costs order or a preparation time order may or must be made(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) ….(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.(4) ……...[19]Rule 76 sets out the amount of a Costs Order. It states so far as is relevant: 76. The amount of a costs order(1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) ….. (c) … (d) …(2) ….(3) ….[20]Rule 82 concerns ability to pay and reads as follows: “In deciding whether to make a costs, preparation time or wasted costs order and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made the representative’s) ability to pay.” In considering an applications pursuant to Rule 74(1) the Tribunal is required to adopt a three-stage test:a. whether the claimant’s conduct falls within rule 74(1)(a) or the claim had no reasonable prospects of success rule 74(2)(b)?b. If so whether it is appropriate to exercise its discretion in favour of making an order?c. If so what amount should be awarded?[21]The award of costs is the exception rather than the rule in Employment Tribunal proceedings Gee v Shell UK Limited [2003] IRLR 82.[22]In exercising its discretion at stage two, factors which the Tribunal may (or may decide not) take into account include the principle that costs are compensatory not punitive, the claimant’s ability to pay, any costs warnings, whether the party has taken legal advice, whether the party is represented, any rejection of a settlement offer, and whether the nature of the evidence changed such that the merits of the case were not apparent until later in the proceedings.[23]HHJ Auerbach in Radia v Jefferies International Limited 2020 IRLR 431 61. It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of Rule 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with Rule 78. Rule 84 provides that, in deciding both whether to make a costs order, and if so, in what amount, the Tribunal may have regard to ability to pay.62. At the first stage, accordingly, it is sufficient if either Rule 76(1)(a) (through at least one sub-route) or Rule 76(1)(b) is found to be fulfilled. There is an element of potential overlap between (a) and (b). The Tribunal may consider, in a given case, under (a), that a complainant acted unreasonably, in bringing, or continuing the proceedings, because they had no reasonable prospect of success, and that was something which they knew; but it may also conclude that the case crosses the threshold under (b) simply because the claims, in fact, in the Tribunal’s view, had no reasonable prospect of success, even though the complainant did not realise it at the time. The test is an objective one, and therefore turns not on whether they thought they had a good case, but whether they actually did.63. In this regard, the remarks in earlier authorities, about the meaning of “misconceived” in Rule 40(3) in the 2004 Rules of Procedure, are equally applicable to this replacement threshold test in the 2013 Rules. See in particular Vaughan v London Borough of Lewisham [2013] IRLR 713 at paragraphs 8 and 14(6). However, in such a case, what the party actually thought or knew, or could reasonably be expected to have appreciated, about the prospects of success, may, and usually will, be highly relevant at the second stage, of exercise of the discretion.64. This means that, in practice, where costs are sought both through the Rule 76(1)(a) and the Rule 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?[24]If there has been unreasonable conduct, there is no requirement for the Tribunal to identify a precise causal link between that unreasonable conduct and any specific items of costs which have been incurred: McPherson v BNP Paribas (London Branch) [2004] ICR 1398. However, there is still the need for some degree of causation to be taken into account as the Court of Appeal pointed out in Barnsley Metropolitan Borough Council v Yerrakalva [2012] IRLR 78: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case, and in doing so to identify the conduct, what was unreasonable about it and what effects it had.”[25]It is appropriate for a litigant in person to be judged less harshly in terms of his or her conduct than a litigant who is professionally represented. According to the EAT in AQ Ltd v Holden 2012 IRLR 648, EAT, an employment tribunal cannot, and should not, judge a litigant in person by the standards of a professional representative. Justice requires that tribunals do not apply professional standards to lay people, who may well be embroiled in legal proceedings for the only time in their life. Lay people are likely to lack the objectivity and knowledge of law and practice brought to bear by a professional legal adviser. The EAT stressed that tribunals must bear this in mind when assessing the threshold tests in the then equivalent to rule 76(1) of the Tribunal Rules 2013. It went on to state that, even if the threshold tests for an order for costs are met, the tribunal still has discretion whether to make an order. That discretion should be exercised having regard to all the circumstances. In this respect, it was not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This was not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.[26]In determining whether to make an order under this ground, a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct — McPherson. The Court of Appeal in Yerrakalva reminded us that it was important not to lose sight of the totality of the circumstances. The vital point in exercising the discretion to order costs (or a PTO) is to look at the whole picture. The tribunal has to ask whether there has been unreasonable conduct by the paying party in bringing, defending or conducting the case and, in doing so, identify the conduct, what was unreasonable about it, and what effect it had.[27]A tribunal only has power under rule 74(2)(b) of the Tribunal Rules 2024 to make a costs award in respect of a claim, response or reply that has no reasonable prospect of success. In Warburton v Chief Constable of Northamptonshire Police 2022 ICR 925, EAT, the EAT confirmed that the power does not extend to an application for a stay of the proceedings. The EAT overturned the costs order on the basis that an application for a stay did not fall within the definition of a ‘claim or response’ in rule 76(1)(b). It noted that rule 1(1) (now rule 2(1)) defined ‘claim’ as ‘any proceedings before an employment tribunal making a complaint’, and defined ‘complaint’ as ‘anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the tribunal’. In the EAT’s view, the words ‘in any enactment which confers jurisdiction on the tribunal’ were particularly significant. Case law had established that, for example, an interim relief application under S.129 of the Employment Rights Act 1996 could be the subject of a costs award. However, an application for a stay, in contrast, sought the exercise of the tribunal’s ordinary case management powers and did not invoke a specific statutory jurisdiction.[28]The respondent’s application is based upon Rules 74(2)(a) and (b). I consider that it is appropriate for me to firstly consider Rule 74(2)(a) as this appears to be the main thrust of the submissions and any consideration as to whether the claimant has acted unreasonably in the conduct of these proceedings, would include whether in pursing his application for an amendment, that application had no reasonable prospects of succeeding.[29]I find that the claimant’s decision to proceed with his application to amend his claim when he had been told by the Tribunal and the respondent that his application had some serious difficulties with an explanation as to why that was the case and when he had received legal advice that his automatic unfair dismissal complaint did not have reasonable prospects, amounted to unreasonable conduct of the proceedings. He was in receipt of that information from 5 March 2025. Although the claimant felt strongly that his disclosure to his employer about health safety concerns was the reason for his dismissal and he raised that with the union solicitors at the outset, the solicitors provided reasoned legal advice why it considered that such complaint did not have reasonable prospects and therefore the union could not support it. That should have alerted the claimant to the risks in seeking to add it to his claim by way of an amendment. The merits of his complaint are relevant to an application to amend, and he was told this by the respondent. He decided however to proceed.[30]In not checking his claim form prior to it being presented and in not reviewing it for some 15 months, the claimant’s application to amend was always going to have significant problems in view of the legal test of reasonable practicability. That was pointed out to him both by the respondent and the delay was also raised as a concern by Employment Judge Leach in his correspondence. I accept that as someone who has very limited English, he would need to rely upon others, but I found that he failed to ask his partner who has assisted him in these proceedings to read it to him. Instituting legal proceedings is a serious step to take and individuals have a responsibility to ensure that what is include in a claim is accurate and reflects their views.[31]Despite these issues, the claimant proceeded to pursue this application having been warned by both the respondents and the Tribunal of its difficulties and the impact it would have upon the final hearing. I find that the claimant’s conduct of these proceedings from the date he received the Tribunal’s letter on 5 March 2025 was unreasonable within the meaning of rule 74(2)(a).[32]I therefore move to the second stage which is whether to exercise my discretion in favour of making a costs order. At this stage I am reminded to consider the whole picture including both the unreasonable conduct but also the effect that it had. Costs are the exception and not the rule within the Tribunal and I note in this case that the claimant was unrepresented at the time he pursued his application to amend his claim. There is no doubt that the claimant feels strongly that his dismissal was because he raised health and safety issues. He raised that with the union solicitor before proceedings were issued and he continues to be of that view. He understood that had been included in his claim and upon realising that it was not, he followed the process to seek to have it included. His strong view on this issue has made him less objective when pursuing this application than someone who has the benefit of legal advice. That firm belief has impacted upon his conduct and clouded his judgment in respect of the application. The EAT in AQ Ltd v Holden 2012 IRLR 648, EAT, reminded us that an employment tribunal cannot, and should not, judge a litigant in person by the standards of a professional representative. Justice requires that tribunals do not apply professional standards to lay people, who may well be embroiled in legal proceedings for the only time in their life. Lay people are likely to lack the objectivity and knowledge of law and practice brought to bear by a professional legal adviser. That is the position here in respect of the application to amend. He did not have legal advice in relation to the amendment application, he is a litigant in person and is someone who is not familiar with the English legal system. He has difficulties in speaking and understanding English. These are factors which weight against me exercising my discretion to make a costs order. I have also considered the claimant’s ability to pay any costs award. The claimant has no discernible assets of any value. He is supporting his wife and children, with the regular assistance of universal credit. There is nothing which leads me to the view that this position will improve in any significant way such that his financial position will improve.[33]Weighed against that is the fact that the Tribunal and the respondent brought the problems the claimant might have with an application to amend to his attention, and he did not pay heed to them. Further that he was told his whistleblowing claim did not have reasonable prospects. The impact upon the respondent, who is a large employer is that it has caused unnecessary delay and cost. As it has transpired, the Tribunal has been able to relist the claim with a relatively short period in Employment Tribunal terms of five months, but it has incurred legal costs which it now seeks to recover.[34]I have weighed up each of these factors and having considered all relevant circumstances, I exercise my discretion against making a costs order.[35]I must also consider the respondent’s application pursuant to rule 74(2)(b) being that the claim, response or reply had no reasonable prospects of success. The costs application is made in respect of the application to amend the claim. I can find no authority which deals with whether an application to amend a claim is a “claim, response or reply” as required by Rule 74(2)(b). Rule 2(1)) defines ‘claim’ as ‘any proceedings before an employment tribunal making a complaint’ and defines ‘complaint’ as ‘anything that is referred to as a “claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the tribunal”. The authorities of Warburton which related to an application for a stay of proceedings and Queensgate Investments LLP v Millet [2021] ICR 863 (referred to in Warburton) which relates to an application for interim relief appear to distinguish between a case management order which in the view of the EAT does not confer jurisdiction and an enactment which confers jurisdiction on the Tribunal (as in the case of interim relief). An application to amend is a case management order which, if granted, brings about a ‘claim’, and as such could be viewed as a hybrid. I consider however that it is essentially a case management order because such application does not confer jurisdiction on the Tribunal. In any event, if I am wrong on this, and such an application does amount to a claim within rule 74(2)(b), for the reasons already provided, I find that the application had no reasonable prosects of success. Proceeding on that basis, I must then consider whether to exercise my discretion in favour of awarding costs. For the same reasons as already stated, I decline to do so.[36]The application for a costs order is refused. Approved by:[37]The parties, and particularly the claimant, put forward a considerable amount of evidence. The Tribunal has considered the evidence put forward by both parties. However, if the following findings of fact are silent in relation to some of that evidence, it is not that it has not been considered, but that it was insufficiently relevant to the issues that the Tribunal had to decide. Not all of the evidence presented by the parties is therefore referred to in this reserved judgment.
Findings of Fact
[38]The claimant was an HGV driver for the respondent and worked for them since 6 November 2015.[39]On 28 May 2023 he was found to have “tipped at height” when unloading from his trailer while delivering to one of the respondent’s stores. The claimant accepted that this was the reason for his dismissal in his claim form. The respondent found that the claimant did the following three acts of misconduct on that day:a. Failing to use the kick plates in the upright position on the tail lift of his HGV;b. Allowing the fork lift truck driver to remove the pallets off the tail lift at height (that is, with the tail lift not flat on the ground); andc. Therefore breaching the respondent’s VSOP (“Visual Safety Operating Procedures”), the relevant risk assessment and the driver’s handbook. The respondent’s evidence is that there was a Safety Notification circulated in January and March 2023 that reiterated this.[40]However, despite accepting that he did these things, the claimant says that his dismissal was unfair because:a. He had insufficient trainingb. The decision to dismiss him for tipping at height was inconsistent with how employees at the respondent’s recycling centre were treated and that the forklift truck driver who unloaded the claimant’s trailer “at height” was not dealt with in the same way as the claimant; andc. As no accident occurred on 28 May 2023, the punishment of dismissal was too harsh.[41]In his witness statement, the claimant also says for the first time in his claim, that the dismissal was also unfair as English is not his first language and he was denied an interpreter, and managers involved in the disciplinary process were not independent as they all worked within the same transport department.[42]The evidence of Mr Rooney, which I accept, was that the correct procedure for delivering using the type of trailer the claimant was driving on the day in question (a double deck wedge trailer) is to unload the pallets from the rear door using the vehicle’s tail lift, with the flaps upright and open and the kick plate upright. The tail lift must be lowered to the ground completely and only once the tail lift is fully lowered can the pallets be removed by a forklift truck driver from the store. The unloading of the vehicle is the responsibility of the driver and not the store staff.[43]Mr Rooney told the Tribunal that the respondent had had a near-fatal accident involving one of their drivers who was seriously injured as a result of “tipping at height” in breach of the respondent’s procedures, in March 2023. This had caused the respondent to respond by increasing awareness and training on safe loading and unloading practices and posters were circulated to refresh drivers’ awareness of the respondent’s procedures. It was handed out at pre-shift briefings and was put onto the respondent’s app for drivers and retail staff. This was only two months before the day of the claimant’s misconduct.[44]I also accept Ms Craven and Mr Rooney’s evidence that the claimant had received a considerable and appropriate amount of training during his employment. He had been given copies of the VSOPs that apply to him and these were before me in the bundle of documents. The claimant’s complaints were that the training was inadequate because of the language barrier. However, I note that the VSOPs are largely set out using a series of photographs to show the proper operating procedures. I also accept the respondent’s evidence that the training was done on the basis of “show me, tell me” practical sessions which contain practical demonstrations. Drivers are asked to sign the VSOPs to confirm that they understand them and further training is provided if the drivers do not understand. They are tested by the trainers to ensure that they do understand. The evidence in the bundle was that the claimant had signed the relevant documents and passed the relevant tests.[45]The claimant’s witness Mr Bamber told the Tribunal that “training was constant in the transport department” and that he had occasionally trained the claimant himself, and that the claimant had raised no complaints about the training he had received. He also confirmed that after the near-fatal accident in March 2023, that stores were reporting drivers to management more frequently for breaching VSOPs.[46]Mr Bamber gave evidence about the different processes in the recycling department. He agreed that some pallets being delivered to store can be very heavy and some can be very light – for example, there may be a pallet of crisps, or a pallet of compost, or tinned food, which may weigh a ton. He also agreed that sometimes “EPT” pallet trucks were used in store deliveries, which weigh more than a ton, and if an EPT fell off a tail gate it would cause an enormous risk. Mr Bamber agreed that tipping those at height was very dangerous and said “yes, you would probably get sacked”.[47]By contrast, he agreed that pallets within the recycling department contained cardboard and/or plastic packaging, which was considerably lighter. He also agreed that the rules were much stricter in the transport department because they were often delivering to areas of the respondent’s stores such as a car park without a barrier, where members of the public could enter. This was the case at the Flint store, where the claimant was alleged to have “tipped” four store delivery pallets at height. Both he and Mr Vaidas, the claimant’s other witness, agreed that the recycling centre is within the respondent’s depot and was closed to the public.[48]The claimant’s evidence was at times contradictory. At times it was apparent that he understood the VSOPs, but that he did not agree with them. Although he asked Mr Rooney about the availability of VSOPs or training in other languages, at no point did he appear to allege that this was what he had needed.[49]The claimant was suspended from work on full pay pending the investigation into the incident on 28 May 2023, which was carried out by Mr Craven. The claimant attended a meeting with Mr Craven on 6 June 2023. The claimant complains that he was not provided with an interpreter for the investigation meeting. However, it is clear from the minutes of the meeting that he was accompanied by a colleague and was offered an interpreter. He signed the minutes of the meeting to say that he agreed with their content. It is therefore not, I find, correct that the claimant was denied an interpreter, as he alleges. He did not ask for one and the respondent’s evidence was that having worked with him, the quality of his spoken English was such that they did not understand that he needed one.[50]It is clear from the investigation meeting minutes that the claimant admitted that he had tipped at height but expressed the view that his way of unloading was safer than what the respondent had told him he should have done. He said then, as he told the Tribunal during this hearing, that he did not agree with the respondent’s Health and Safety procedures. I find that he expressed the view throughout the disciplinary investigation process that he thought that his way was better, and safer, and saved time.[51]The disciplinary hearing took place with Ms Cowey on 13 June 2023. The claimant was invited in a letter dated 8 June 2023 which warned him that if the allegations were proven, they would amount to gross misconduct and could result in him being dismissed from his job. At the meeting, the claimant was accompanied by a representative from his trade union, USDAW.[52]During the disciplinary hearing the claimant was shown CCTV footage of the incident in question. Ms Cowey’s evidence was that this clearly showed the claimant allowing the forklift truck driver to remove the pallets at height. The height in question was approximately 50cm off the ground. During the hearing, the claimant repeated that it was safer to unload with the flaps closed, which was the opposite of what the respondent required him to do. His comments to Ms Cowey appear to have been contradictory in that he said both that he agreed that he had been trained in loading and unloading but did not understand the training at the time. I accept that this had not been raised by him during the investigation meeting. He also told Ms Cowey that he was a very experienced driver with a clean disciplinary record and no previous accidents.[53]The claimant also told Ms Cowey that he did not consider the matter to be particularly serious as he had only unloaded the final four pallets in breach of the respondent’s policies, as opposed to the whole delivery, because he did not want to be late for the next store. I accept Ms Cowey’s evidence that she was concerned that the claimant did not appear to accept that breaching health and safety rules was a serious matter, whether unloading four pallets or a whole delivery. She noted that the claimant’s trade union representative said that he could not defend what the claimant had done, referring to it as a “grave mistake”, but only that he could defend the claimant’s loyalty and his previous record and asked the respondent whether the claimant could learn from what he had done and be given more training.[54]The claimant also made the point that the respondent’s operatives in the recycling areas are allowed to tip at height and so he was being treated inconsistently. Ms Cowey’s evidence was that the recycling area was not accessible to members of the public or store staff, and that the VSOPs were different for the recycling areas. Her evidence, which I accept, was that other drivers at the same time were dismissed for tipping at height and so there was no inconsistent treatment of the claimant.[55]Ms Cowey adjourned the meeting to consider matters and returned after 40 minutes. However, she asked to adjourn the meeting again as she wanted to properly consider the decision, particularly taking into account the claimant’s 7-year service with the respondent. The claimant then told her that his son had been in hospital prior to the disciplinary meeting. I accept that had the claimant raised this at the start of the meeting, not at the end, Ms Cowey could have taken this into account and checked with the claimant if he was OK to continue. However, he had raised it with her too late for her to adjust how the meeting was conducted. I also accept that it was reasonable for her to consider that this was not relevant to the incident on 28 May, as his son’s illness had taken place after that.[56]The claimant’s submissions to the Tribunal during this hearing about the respondent’s response to the hospitalisation of his son, were notable for their intensity. He was very angry that the respondent had not placed more weight on this at the time. He appeared to consider that the respondent should have not taken the decision to dismiss him once they learned that his son had been ill. Indeed, it was one of the grounds of appeal in his appeal letter, where he wrote “…I found it very hard to share this at the time and regardless of this tough time for me, I was summary dismissed without notice.” However, that is not a reasonable expectation for him to have in the circumstances, particularly given the dangers to life of tipping at height and the respondent’s near-fatal accident in March 2023[57]Ms Cowey took time to consider her decision. She told me that she did not accept that the claimant had not understood the training provided. In particular, she noted that the claimant had told her that he had known what the respondent expected him to have done. She found that the reason why the claimant had tipped at height was because he wanted to save time and go home as soon as possible. His working day on 28 May consisted of just two deliveries and having delivered at Flint, North Wales, his next store was close by in Mold.[58]The decision Ms Cowey took was to dismiss the claimant for gross misconduct. Her evidence was that he had refused to accept the seriousness of the incident and refused to accept that the needed to follow the respondent’s health and safety requirements at all times. She believed that there was a loss of trust and confidence in the claimant as well as the incident of misconduct on 28 May itself. I accept her evidence. The claimant’s dismissal was confirmed in a letter to him dated 19 June 2023.[59]The claimant was given a right of appeal, which he exercised. He submitted his appeal in a letter dated 25 June 2023. He made a number of allegations of inconsistency of treatment and that the sanction was too harsh. He alleged that he had not understood the VSOPs because he had not had the training and that it was not in his first language. He also raised the issue of his grievance against an individual called Mr Cooney which he said he had not received the outcome of.[60]Mr Rooney was the appeal officer for the claimant. He arranged an appeal hearing for 19 July 2023 and the claimant was accompanied by a representative from his trade union. I find that Mr Rooney took time to review the grounds of appeal and the minutes of the disciplinary hearing and the outcome letter. He also reviewed the claimant’s training records.[61]Mr Rooney discussed with the claimant the issues he had raised about length of service, clean disciplinary record and inconsistent treatment with others. Mr Rooney noted that there were several other drivers who had “tipped at height” and had been dismissed for it, in recent times. He considered the claimant’s length of service and clean disciplinary record but that it did not excuse the seriousness of the claimant’s conduct. He took into account the fact that the claimant’s son had recently been ill and that the claimant’s mother had also been unwell but again did not consider it to be a mitigating factor for his conduct as these difficulties arose after the incident in question.[62]When discussing the issue of inconsistent treatment, the claimant raised with Mr Rooney that those in recycling were allowed to “tip at height”. Mr Rooney found that the VSOPs for recycling were different and that the respondent’s reason for this was that the recycling environment was “closed” that is, not accessible to members of the public or store staff.[63]The claimant told Mr Rooney several times during the appeal hearing that he had never been told about the VSOP that were communicated to the respondent’s drivers, especially after the recent near-fatal accident. I accept that Mr Rooney took time after the hearing to investigate further whether the claimant had in fact received the relevant training. Mr Rooney found that he had. The claimant had signed VSOPs with visual descriptions and photographs and had attended “show me, tell me” talks. The evidence of this is also before the Tribunal in the bundle.[64]However, the claimant told Mr Rooney, somewhat contradictory to his evidence elsewhere, that the VSOPs were “not safe”. During the appeal hearing, the claimant said “I can help. The procedure is not safe. It needs to be done by an expert and these people are not experts.” During the Tribunal hearing the claimant repeatedly tried to introduce new evidence which he said showed that the respondent’s VSOPs were directly contrary to the manufacturer’s instructions as to how those trailers were meant to be used.[65]I accept that this attitude was particularly concerning to Mr Rooney. His evidence was “…this really concerned me as he had been told repeatedly that he must follow our procedures, yet he clearly had an issue with doing so…. I believe this to be a failure to follow a reasonable management instruction.”[66]Mr Rooney also considered the point raised by the claimant that he had raised a grievance against Mr Cooney, which had been heard by Mr Craven, the investigating officer. Mr Rooney concluded that there was no evidence that this had any bearing on Mr Craven’s investigation of the incident on 28 May. Other drivers who had not raised a grievance had also recently been dismissed for “tipping at height”. Furthermore, I accept Mr Rooney’s evidence that Ms Cowey had taken the decision to dismiss, and she had not been involved in any proceedings with the claimant before.[67]The claimant raises as one of his issues to this Tribunal that there is some kind of conspiracy or collusion between the individuals involved in his disciplinary process, as they all work together in the transport department. His argument would appear to be that they have not approached their individual role in the process in an openminded or independent way and that this has affected the fairness of the outcome. Other than the fact that the claimant disagrees with the outcome of the disciplinary process, there is no evidence before the Tribunal as to how the outcome was affected by this. I note that the claimant’s union representatives did not raise concerns about this at either the disciplinary hearing or the appeal. The claimant did not raise this as a ground of appeal in his appeal letter.[68]The claimant raised with both Ms Cowey and Mr Rooney the issue of him not having understood “complex English” and he said to both of them during this hearing that he had told them this during the disciplinary and appeal hearings. Both witnesses denied this; Ms Cowey’s evidence was “you didn’t inform me or the union rep and you had a meeting with the union rep beforehand.” She also confirmed that he was offered a translator but was happy to carry on without one.[69]The claimant said for the first time during the Tribunal hearing that he considered the meeting minutes from the disciplinary hearing to be “completely wrong” and that he did not understand them. He asked Ms Cowey approximately 8-10 questions about the accuracy of the notes of the hearing. He put it to her that she had “changed my statements so I wasn’t aware that they had been changed”. Ms Cowey’s evidence, which I accept, was that the claimant signed the meeting minutes having had them read out to him by his union representative beforehand. This was done before the adjournment in the hearing, to allow any confusion to be cleared up before she had adjourned.[70]The claimant’s questions to Mr Rooney were why he had refused the claimant an interpreter at the appeal hearing. Mr Rooney’s evidence, which I accept, was that he had been happy to delay the appeal hearing to get an interpreter, but the claimant’s representative from the union, Mr Gerard, who was a senior shop steward, said that he would make sure that the claimant understood what was being said, and the claimant agreed to the hearing going ahead without an interpreter.[71]The claimant raised a number of issues with Mr Rooney during his crossexamination of him as to why the forklift truck driver had not been disciplined for removing the pallets from the claimant’s vehicle at height. I accept Mr Rooney’s evidence that it is the driver’s responsibility to make sure that the forklift truck driver is following the correct procedure, and that the drivers receive the training on the relevant VSOPs and not the forklift truck drivers.
The Law
[72]It is well established law that determination of an unfair dismissal complaint is to be done, in the first instance, in accordance with section 98 of the Employment Rights Act 1996.[73]A respondent employer must show on the balance of probabilities that it had a fair reason for dismissal. In this case the respondent’s reason is that of misconduct.[74]Where the potentially fair reason given by the employer is misconduct, the Tribunal is to have regard to the guidance set down in the case of British Home Stores v Burchell [1978] IRLR 379 which is:a. Did the respondent have an honest belief that the claimant had committed an act of misconduct?b. Did the respondent have reasonable grounds for holding that belief?c. At the time that that belief was formed on those grounds, had the respondent carried out as much of an investigation as was reasonable in the circumstances?[75]Although the ACAS Code of Practice on Disciplinary and Grievance Procedures is not legally binding, the Tribunal must have regard to it when assessing both the substantive and procedural fairness of an employer’s decision to dismiss. However, it is a well-established feature of the law of unfair dismissal that the investigation and procedure need only be within a range of reasonable actions. - J Sainsbury plc v Hitt 2003 ICR 111, CA; Whitbread plc (t/a Whitbread Medway Inns) v Hall 2001 ICR 699, CA. For example, the investigation need only be a reasonable one and need not be a forensic examination of all possible evidence.[76]In the ACAS Code of Practice, there is no requirement to give an employee notice that an investigation is being conducted.[77]Further requirements of the ACAS Code of Practice are that the employee must have enough information to understand the case against them and must be provided with a right of appeal.[78]The respondent must show that the reason to dismiss was within a range of reasonable responses that a respondent could have taken in that situation. There must be a fair investigation in all the circumstances, and the decision to dismiss must take into account equity and the substantive merits of the case.[79]The Tribunal is expressly cautioned against substituting its view for that of the respondent in reaching the decision to dismiss. The Tribunal must not decide the case on the basis of what it considers to be the correct action in the circumstances, but instead must decide whether the respondent’s actions, including the decision to dismiss, were the actions of a reasonable employer in the circumstances. Application of the law to the facts found[80]I find that the claimant had received a considerable amount of training from the respondent on the relevant procedures (VSOPs). He is a professional driver and had over 7 years’ service with the respondent. He was not a new employee. I accept Mr Bamber’s evidence that the training was regular and continuous in the transport department and that this involved the claimant on a regular basis also. I do not accept the claimant’s evidence that he was not able to understand the training materials. They are in the main visual training materials with photographs and furthermore, if he did not understand what he was being told, as a professional driver with responsibility for safety, it was his responsibility to tell those training him that he did not understand.[81]I find that the respondent reasonably concluded that the claimant knew what the correct process was for delivering to store, but chose not to follow it for the last four pallets of the delivery to the Flint store on 28 May 2023, to save time. He had unloaded the rest of the delivery in the correct way.[82]I find that the respondent reasonably concluded that the claimant had no issues with understanding what was discussed with him at the investigation meeting, disciplinary meeting and appeal meeting. At the investigation meeting and disciplinary meeting, he was shown CCTV footage of the incident in question. He did not disagree with the allegation that he had “tipped at height”. He signed the meeting minutes, having had the opportunity to review them. He was accompanied by a union representative at both the disciplinary meeting and appeal meeting. He did not at any point during the investigation, disciplinary meeting or appeal meeting say that he needed a translator, or that he did not understand what was being said to him.[83]There is no obligation on the respondent to allow him time before an investigation meeting to prepare for it. It is reasonable for the respondent to want to conduct the investigation quickly, particularly where it involves potentially dangerous behaviour by an employee.[84]There is also no obligation on the respondent to delay the dismissal in order that the claimant’s grievance appeal is concluded. The respondent reasonably treated the grievance and the disciplinary as separate matters. Having found that the claimant committed gross misconduct, it was not unreasonable for the respondent to dismiss him for that, irrespective of the unfinished grievance appeal.[85]It was not unreasonable for the respondent to dismiss the claimant for gross misconduct in circumstances where his mother and his son had both been unwell, after the incident in question. The respondent has an obligation to ensure a safe workplace and to enforce safe systems of work. It is not reasonable for the claimant to expect the respondent to ignore or overlook the claimant’s potentially dangerous conduct, because of difficult circumstances in the claimant’s personal life.[86]I find that Ms Cowey had an honest belief that the claimant had committed an act of misconduct on 28 May 2023. She had reasonable grounds for holding that belief, as the claimant admitted to the conduct in question, and the claimant’s union representative acknowledged that it could not be defended and was a “grave mistake”. Ms Cowey had seen the CCTV footage of the incident in question.[87]I find that at the time that that belief was formed by her on those grounds, the respondent had carried out as much of an investigation as was reasonable in the circumstances. Mr Craven had met with the claimant and provided him with an opportunity to discuss the incident. The respondent reasonably concluded after the investigation that the claimant knew about the relevant VSOP but did not follow it, and the claimant told the respondent in the disciplinary and appeal meetings that he did not consider the VSOP to be correct, and that he knew better than the respondent what the respondent’s process should be. Both Ms Cowey and Mr Rooney found this attitude by the claimant to be particularly concerning, as it suggested that the claimant could not be relied on in future to follow management safety instructions.[88]Therefore, both the disciplinary officer and the appeal officer reasonably concluded that a disciplinary sanction that fell short of dismissal, as had been requested by the claimant’s union representatives, would not be appropriate. Further training and further learning opportunities would not have been appropriate, given how much training the claimant had already had, and given his poor attitude to the respondent’s instructions. The respondent reasonably concluded that this was the case, taking into account the claimant’s length of service and clean disciplinary record.[89]The respondent followed a reasonable procedure. The claimant now raises multiple issues with the disciplinary process which were not raised with the appeal officer at the time, for example in relation to meeting minutes and being denied an interpreter. I did not accept the claimant’s evidence in relation to those issues, on the balance of probabilities.[90]The claimant’s claim changed during the course of this hearing. He repeatedly tried to amend it as the hearing went on. For example, during his cross-examination he accepted that he knew what the correct VSOP was, but began to argue that the incident was the forklift truck driver’s fault. He attempted to argue that “tipping at height” was only a problem if the height was 2 metres or more.[91]I find that the claimant did not pay attention to the training he was given. He did not pay proper attention to the investigation hearing or the disciplinary hearing as he did not believe that he would be dismissed. He admitted to the misconduct, in a misguided belief that his view of the matter was more important than the respondent’s and that the respondent would not dismiss him. The issues he then raised on appeal, and during this hearing, were an attempt to reverse-engineer problems or were issues that were not in his mind during his employment.[92]The respondent is entitled to set its own safety processes and procedures and employees are obliged to follow them. If the employee believes those procedures to be unsafe, the employee can raise an issue with management during their employment, or the Health and Safety Executive. What they cannot do is simply choose on occasion not to follow them.[93]The claimant was fairly dismissed . The claim fails and is dismissed. Approved by