Mr D Stringer Prince v Morrells Woodfinishers Ltd: 2411689/2018
JUDGMENT
[1]The judgment of the Tribunal is that the claimant’s claim of unfair dismissal succeeds. The claimant is awarded and the respondent ordered to pay as follows:. Basic Award 2 x £350 (gross weekly wage) £ 700 Compensatory Award 2 x £248 (net weekly wage) £ 498 Total Award £1,198 Employment Judge Feeney 15th October 2018[2]JUDGMENT SENT TO THE PARTIES ON 29th October 2018 FOR THE TRIBUNAL OFFICE Case No. 2411689/18 2 Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. ` Case No. 2411689/18 3 NOTICE THE EMPLOYMENT TRIBUNALS (INTEREST) ORDER 1990 Tribunal case number(s): 2411689/2018 Name of case(s): Mr D Stringer-Prince v Morrells Woodfinishers Ltd The Employment Tribunals (Interest) Order 1990 provides that sums of money payable as a result of a judgment of an Employment Tribunal (excluding sums representing costs or expenses), shall carry interest where the full amount is not paid within 14 days after the day that the document containing the tribunal’s written judgment is recorded as having been sent to parties. That day is known as “the relevant decision day”. The date from which interest starts to accrue is called “the calculation day” and is the day immediately following the relevant decision day. The rate of interest payable is that specified in section 17 of the Judgments Act 1838 on the relevant decision day. This is known as "the stipulated rate of interest" and the rate applicable in your case is set out below. The following information in respect of this case is provided by the Secretary of the Tribunals in accordance with the requirements of Article 12 of the Order:- "the relevant decision day" is: 29th October 2018 "the calculation day" is: 30th October 2018 "the stipulated rate of interest" is: 8% MR J HANSON For the Employment Tribunal Office[3]Case No. 2411689/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr D Stringer-Prince Respondent: Morrell Woodfinishers Ltd Heard at: Manchester On: 12 October 2018 Before:REASONS
[1]The claimant brings a claim of unfair dismissal following his dismissal by the respondent on 19 February 2018. The claimant says his dismissal was unfair as the it was unreasonable to believe he had called his colleagues names, thefact that he had been bullied had not been properly taken into account nor that the colleague was the aggressor.. The claimant did not believe that the other person involved who had provoked him had been disciplined, his previous warning was unrelated to this matter, and the respondent had failed to organise an appeal.[2]The respondent did not attend but their ET3 stated that the claimant had been warned for similar conduct and then was found to have become involved in an argument in which there was physical contact and therefore he was summarily dismissed. It was a fair dismissal. Evidence and Documents Case No. 2411689/2018 2[3]I had no documents as the claimant did not attend with any and the respondent did not attend at all nor provide any in advance of the hearing. The only evidence was from the claimant. Findings of Fact My findings of fact are as follows:Findings of Fact
[4]The claimant began working for the respondent on 5 April 2015 on picking duties in their warehouse.[5]The respondent states that the claimant received a warning for similar misconduct, however the claimant said it was for not wearing the correct uniform. The claimant’s evidence was unchallenged and therefore I accept his evidence.[6]On 6 February 2018 the claimant was walking down an aisle when a colleague JB deliberately knocked him into a picking truck.[7]The claimant said later than day the same colleague tried to barge into him. There was physical contact but the claimant said it was accidental and that JB pushed his hat off his head.[8]The claimant said that due to being bullied in the past he was nervous and that he did react by grabbing JB.[9]Later that day JB had said to the claimant ‘ wipe that smile off your face or I will do it for you’. The claimant said JB had agreed he had said this during the investigation.[10]The respondent investigated the matter but I have no evidence regarding the investigation or the disciplinary hearing as the respondent did not provide any documentation or evidence. The claimant said JB accused the claimant of calling him names. He accepted there was general banter in the warehouse but that none of it was aimed specifically by him at his colleague, JB. Further JB had accepted he had said the smile comment.[11]He was not suspended during the period after the incident and there were two meetings one on 14th February and one on the 16th February. The claimant was advised of his dismissal by a letter of 19th February.[12]The claimant said he appealed but there was no response. The respondent accepted that the claimant had appealed but stated they responded and required further information but had no response, however as the respondent was not at the hearing to verify that evidence I accepted the claimant's evidence that he had appealed but the respondent had failed to respond to his appeal.The Law
[13]Section 98 of the Employment Rights Act 1996 states that: “In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show: Case No. 2411689/2018 3(a) the reason, of if more than one the principal reason, for the dismissal; and(b) if it is a reason falling within section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”[14]Conduct is one of the reason an employer can rely on.[15]Section 98(4) states that: “Where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.”[16]Following British Home Stores Limited v Burchell [1980] a threefold test applies to a misconduct dismissal. The employer must show:(1) It believed the employee guilty of the misconduct;(2) It had in mind reasonable grounds upon which to sustain that belief; and(3) At the stage at which that belief was formed on those grounds it had carried out as much investigation into the matter as was reasonable in the circumstances.”[17]Once the respondent has established that they met this three point test the question arises whether it was reasonable to dismiss for that reason, and the Tribunal must consider whether the decision to dismiss fell within the range of reasonable responses of a reasonable employer, which applies both to the decision to dismiss and the procedure by which the decision was reached.[18]In respect of a fair procedure, in Polkey v A E Dayton Services Limited [1988] House of Lords: “Procedural steps must include a full investigation of the conduct in a fair hearing to hear what the employee wants to say in explanation or mitigation.”[19]The Tribunal should bear in mind the ACAS Code of Practice which sets out the basic requirements for fairness, which will be applicable in most conduct cases. This says that the employer must normally:(1) carry out an investigation to establish the facts of each case; Case No. 2411689/2018 4(2) inform the employee of the problem;(3) hold a meeting with the employee to discuss the problem;(4) allow the employee to be accompanied at the meeting;(5) decide on appropriate action;(6) provide employees with an opportunity to appeal.[20]In respect of previous warnings, even if they related to different matters they can be taken into account (Auguste Noel Limited v Curtis [1990]), but the circumstances can be considered as to, for example, the level of warning given for the previous matter. It also has to be considered within the context of the respondent’s policy on warnings and dismissal.[21]Finally, the Tribunal should remind itself that it should not substitute its view for the decision of the respondent. As referred to above, the respondent’s decision must be within the range of reasonable responses of a reasonable employer, which is a wide band.Conclusions
[22]In this case the Tribunal only had the claimant’s evidence and although the respondent had put forward relevant points in their response form they were not at the hearing to verify the points they made, therefore I accepted the claimant'sevidence.
[23]As a result of that the Tribunal had no evidence that any fair procedure was followed in relation to the investigation and whether both parties were treated equally. The Tribunal accepted the claimant’s evidence that the warning was about wearing incorrect uniform, and whilst it is relevant that the claimant had a warning it is clearly a completely different matter for which he was dismissed . There was no evidence it was a written warning and certainly not a final written warning. Accordingly, this would have been a low grade warning that really would not have tipped any misconduct not deemed to be gross misconduct into a dismissal.[24]On the basis of the claimant’s evidence, whilst he agreed there had been accidental physical contact, the claimant had been provoked and had mitigation in respect of having been bullied before and therefore the dismissal was unfair as had these matters been properly taken into account it would not have been within the range of reasonable responses to have dismissed the claimant.[25]The dismissal was also unfair because the respondent did not organise an appeal. The respondent did address this in their ET3, however they produced no evidence to back up the argument they made in their response form that they had asked the claimant to provide more details of his appeal and he had failed to do so and therefore they took the matter no further. The claimant’s evidence that he had appealed was accepted. Accordingly, by not holding an appeal contrary to a fair procedure and the ACAS code of practice the procedure was fundamentally flawed and the dismissal was unfair. Case No. 2411689/2018 5[26]Again, because the respondent was not here there were no Polkey points or contributory conduct to consider and therefore the Tribunal bases the award on the claimant's evidence.Remedy
[27]The claimant gave evidence that he had been unemployed for two weeks. He had been employed for two full years with the respondent aged under 40. Accordingly, the Tribunal made the following award: Basic Award 2 x £350 (gross weekly wage) £700.00 Compensatory Award 2 x £248 (net weekly wage) £498.00 Total Award £1,198.00