Mr A Cuthbert v Rephouse Europa Ltd: 2423588/2017
JUDGMENT
The judgment of the Tribunal is that the claimant was dismissed in breach of contract, the claimant claims for notice pay and car allowance for a three month period succeed. The respondent shall pay £11,924.79 to the claimant. The Tribunal orders that there shall be a 25% uplift upon the sum awarded, the respondent shall pay a further £2,981.20 and the total award the respondent shall pay the claimant is £14, 905.98.REASONS
[1]The claimant was employed by the respondent from 15 July 2016 until 9 August 2017 as UK Sales Manager. He brought a Tribunal claim on 8 November 2017 in respect of notice pay for the period of three months to include a car allowance. The claim was brought by means of breach of contract by the respondent and an uplift in respect of the award was sought in the claim form.[2]The respondent originally defended that claim in the ET3 that was filed. As the Tribunal began this hearing today on 12 March there was no issue in respect of breach of contract and there was no issue in respect of the award of £11,924.79. The issue before this Tribunal has been that of the uplift. The documents before the Tribunal have been the claimant's written submissions, the statement of the claimant Mr Cuthbert, the claimant's list of documents, a bundle of documents regarding the jurisdictional issue, within that bundle of documents the Tribunal has been assisted by a helpful commentary from Harvey on Section 207A of the Trade Union and Labour Relations Consolidation Act 1992.[3]The Tribunal also heard unchallenged evidence on oath from the claimant and he within that evidence confirmed his statement and the Tribunal obtained a flavour of the disciplinary process which was in place within the respondent at the time of the claimant's dismissal.[4]So far as the law to be applied is concerned the Tribunal retains the power of uplift in cases of failure to follow proper disciplinary procedure, that procedure is usually that contained in the ACAS code of practice regarding disciplinary and grievance procedures. Schedule A2 of the Act cited above shows the jurisdiction to which Section 207A applies and this includes in Schedule 2 by means of the Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 breach of employment contract and termination. That then includes matters such as raising and dealing with issues promptly, employers and employees acting consistently, employers carrying out any necessary investigations to establish facts and informing employees of the basis of the problem and giving them an opportunity to put their case. It also includes employers allowing employees to be accompanied at any formal disciplinary or grievance meeting and employers allowing an employee an appeal against any formal decision made. It is clear and it hasn't been in dispute that the respondent's case is that the claimant was dismissed for a reason relating to conduct, so in all the circumstances I am satisfied that I have jurisdiction to apply an uplift and I do so on the basis of what I find to be just and equitable in this case.[5]So far as that aspect is concerned the claimant has the feeling that the respondent acted in bad faith, in reality he feels that the employment contract was set up to establish a warehouse base in the UK, the respondents being a Maltese based company and not really to further his employment in the sales role, he is fortified in that belief as he was not issued with sales targets and not originally given a three month notice period in his original contract, he later negotiated and signed a contract with a three month notice provision. In my view having set out those provisions of the ACAS code which appear relevant it seems that the respondent has failed to follow the ACAS code in practically all material particulars before conducting a conduct disciplinary and dismissal. In fact other than holding a meeting the respondents failed in all of the particulars that I have just listed. I have heard submissions from both parties and I have reconsidered the submissions made on behalf of the respondents, Mr Jones on the respondent's behalf asked me to consider that this was essentially a breach of contract claim and therefore I should treat the matter so far as damages are concerned and view that in the civil context, he also submitted that as the respondent company are Maltese based they may not be fully au fait with UK provisions of employment law and he gave the submission that there were ten reasons given for the claimant's employment ending although the claimant disputed those reasons in his witness statement.[6]I can find nothing in those submissions which lead me to reduce the uplift from 25% and in that regard having applied that amount to the figures given it amounts to £2,981.20 giving the total sum awarded of £14,905.98 and that is the award made[1]At the conclusion of the hearing relating to the uplift in this matter the Tribunal having given judgment the Tribunal proceeded to deal with the claimant's application for costs against the respondent. The respondent's costs application was not pursued in the light of the judgment on the uplift. The claimant applies for costs and provided the Tribunal with a costs application bundle and a written application for costs with reasons for costs being sought. Within that application the claimant set out its submission that the respondent had acted unreasonably in the conduct of the proceedings relating to entering a defence and persisting with the defence relating to failing to engage with the Tribunal process or co-operate with requests for documents and witness statement and by failing or refusing to disclose its intention to concede the breach of contract claim until two hours before close of business on the Friday before this hearing on Monday 12 March, the claimant also asserts that the respondent's response had no reasonable prospect of success in that although the claimant was dismissed summarily by reason of his conduct, gross misconduct has not been alleged or pleaded and the respondent has not produced any evidence or witness statements in support of its defence. Further, the respondent admitted liability for three months notice pay claimed by the claimant on 9 March 2018.[2]The Tribunal has heard oral submissions on behalf of both parties, the Tribunal is concerned that the claimant made absolutely clear his intention to seek costs at page 6 and page 10 of the costs application bundle in emails on 10 January 2018, on 7 March 2018 and 9 March 2018 and there was little response from the respondent until late on the Friday before this hearing an offer of settlement relating only to the notice pay and car allowance was made to the claimant, that left still in issue the uplift aspect and the costs. The claimant has within the costs application bundle claimed the total sum of £2,137.20, all of which has been in the Tribunal's view reasonably incurred.[3]So far as the respondent is concerned the respondent asserts that the respondent had a genuine belief in its entitlement to terminate the claimant's contract when the defence was entered albeit that it had no legal advice at that time. The respondent asserts that the Schedule of Costs is in part incurred due to focussing on settlement and it is unfair of the claimant to assert that they were not engaging in the process. So far as the reasonable prospects of success of the ET3 is concerned it is conceded that the concession came rather late in the day and that the claimant has been successful in respect of the uplift but that is not without legal argument.[4]I have considered Rule 76(1)A and B of the 2013 Employment Tribunal Rules of Procedure, I have concluded that the respondent has acted unreasonably and that the response had no reasonable prospect of success. I have given unreasonable its ordinary meaning in applying the law to the facts of this case. I am encouraged to consider looking at the whole picture and to my mind the concession in late afternoon on Friday before the Monday of a hearing postponed from January is significant in relation to the reasonableness or otherwise of the respondent's conduct, it meant that this matter insofar as a dispute is concerned has been held over the head of the claimant since early January.[5]Further, in my view the defence to the notice pay claim has always been illusory. There was no defence hence the ultimate concession two months down the line after the postponement of the hearing in January. The costs warnings were also given to the respondent in correspondence by the claimant so the respondent knew that the claimant was likely to pursue costs if this hearing went ahead and went in the claimant's favour. I am satisfied therefore that the respondent has acted unreasonably and had no reasonable prospect of success in their defence. I am troubled by whether or not I should award the totality of costs or otherwise. The respondent has submitted that there has been some attempts to settle the claimant's claim and I accept that that is probably so, I also consider that its naturally the case that some costs are incurred at the outset of a claim being formulated which may or may not be apportioned to the respondent's door. Advice at the outset of this type of executive employment ending is usual so I consider overall that it is unfair to require the respondent to bear the totality of the costs and therefore my order is that the respondent bears three quarters of the cost which on my calculation as I have said amounts to £1,602.90 which the respondent shall pay the claimant.