Employment Judge FeeneyMr N Grundy (instructed by counsel) for claimantDate 30 December 2021
JUDGMENT
[1]the claimant was(1) expressly dismissed on 29 June 2017(2) that his dismissal was unfair[2]Accordingly the claimant’s claim of unfair dismissal under Sections 94 and 98 Employment Rights Act 1996 succeeds.[3]There is no contributory conduct.[4]The claimant’s claim of wrongful dismissal succeeds.[5]The claimant’s claim that the respondent failed to provide him with a statement of written particulars as required by section 92 Employment Act 1996 succeeds.[6]The matter is listed for remedy on 16 January 2019. Case No. 2423853/17 JUDGMENT having been sent to the parties on 21 November 2018 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Conclusions
[1]The claimant, by a claim form dated 23 November 2017, brought a claim of unfair dismissal, in the alternative unfair constructive dismissal, wrongful dismissal and failure to provide written particulars. He had also brought a holiday pay claim and a breach of contract in respect of an expenses claim but he did not pursue these at Tribunal.
The Issues
[2]The issues in this case are: Unfair Dismissal(1) Whether the claimant was dismissed under section 95(1)(a) of the Employment Rights Act 1996 by the words and/or actions of the respondent on 3 July 2017, or some other date; and if so(2) Whether the dismissal was for a potentially fair reason under section 98(1) and (2), in this case SOSR; and if so(3) Whether the respondent acted reasonably under section 98(4).(4) If the claimant was not dismissed under section 95(1)(a) then the Tribunal will determine whether the claimant resigned because of a fundamental breach of contract on the part of the respondent and was therefore dismissed under section 95(1)(c).(5) In this case, the claimant relies upon a breach of the implied term of mutual trust and confidence which can be summarised as working excessive hours, a lack of support, aggressive and abusive behaviour of Mr Johal, being replaced by other employees.(6) If there was a dismissal under section 95(1)(c), whether there was a potentially fair reason under section 98(1) and (2).(7) Whether the respondent acted reasonably under section 98(4). Breach of Contract(8) Whether the respondent was in breach of the claimant's contract of employment by failing to pay him his notice pay. Failure to issue a statement of particulars(9) Whether the respondent failed to issue a statement of employment particulars under section 1 of the Employment Rights Act 1996 and whether the claimant is therefore entitled to a remedy under section 98 of the Employment Act 2002. Witnesses[3]The Tribunal heard from, for the claimant, the claimant himself and Mr J S Birdi, engineer. For the respondent the Tribunal heard from Mr M Johal, Director; Mrs F Johal, Secretary; Mr A Chinthala, Factory Manager. A witness statement was submitted for Mr John Coomber but he did not attend the hearing and no weight was attached to that witness statement. There was an agreed bundle of documents. Credibility
Evidence
[4]The issue in this case was whether the claimant had resigned with three days’ notice or whether he had been dismissed by the respondent, either in a telephone call on 29 June or on 3 July. I have preferred the claimant's version of events for the following reasons, which will be clearer once the facts as found are recited:(1) The claimant’s witness statement was consistent with his grievance and claim form, and with the evidence he gave at the grievance hearing.(2) Mr Birdi’s evidence corroborated and was consistent with the claimant’s evidence in specific and generalised matters, for example – (i) That Mr Johal swore at Mr Birdi also; (ii) That Mr Johal on one occasion had also sacked Mr Birdi; (iii) That Mr Johal told Mr Birdi he had suspicions about the claimant trying to ruin his business; (iv) That Mr Johal had dismissed the claimant because he did not trust him.(3) Mr Johal’s evidence was unreliable in some parts as follows: (a) Re the issue of contracts of employment, he said one had been sent out and yet in cross examination it was entirely clear he did not actually know this; (b) That he had said in his witness statement problems began in June but his oral evidence was that there had been problems throughout the claimant's employment; (c) He agreed that the claimant rang John Coomber on 28 June and therefore corroborated to some extent the claimant's evidence; (d) He also corroborated Mr Birdi’s evidence regarding various telephone calls, although not necessary the full extent of what Mr Birdi said was said.(4) Mrs Johal’s evidence was unsatisfactory also, for example: (a) She was completely confused as to when she was told that the claimant had resigned and that Mr Chinthala was helping out. She said at one point it was one week and then at another point two weeks, then she found out both at the same time. In any event, her and Mr Johal’s evidence that he did not tell her for two weeks was wholly unsatisfactory as it was totally unrealistic. (b) In addition, she was unconvincing regarding when and how she advised the accountant to issue the P45, in particular not producing any documentary evidence which would have supported this and maybe would have shed light on what she understood at the time was the reason for issuing the P45.(5) As for Mr Chinthala’s evidence, he only knew a small proportion of what had happened in any event. He only knew what he was told. Where he was giving direct evidence, I bore in mind that he was unhappy with the claimant and had left because of the claimant, and his evidence was rather repetitive: it was as if he had learned a couple of phrases like he was “there to help” and under no circumstances must say he was there to take over. On balance I felt the claimant's evidence regarding his dealings with Mr Chinthala on 3 July were more convincing.(6) Failure to call Mr Coomber or address the issues in his witness statement – whilst Mr Coomber was said to be ill no medical evidence was submitted.
The Law
[5]In respect of the claimant's credibility I did also consider potential inconsistencies in the claimant attending work on Friday, Saturday and Monday when he was already dismissed. However, given the evidence I heard from both of them about Mr Johal and that he had changed his mind about dismissals in the past, this made more sense. I also accept the claimant was hoping that he would change his mind but this was dispelled when Mr Chinthala turned up, and he did immediately leave the premises. In relation to the fact he did not bring a grievance for three weeks after his alleged dismissal, this again was explained by the claimant waiting to see what the respondent would do. Finally, in the absence of any communication, and in the absence of a P45, he put in his grievance. All of these issues are dealt with in the written reasons below. Findings of Fact The Tribunal’s findings of fact are as follows:[6]The claimant began working for the respondent in September 1999 as General Manager of the respondent’s business in Manchester. Mr Johal, who is a 40% shareholder and director of the company, is the claimant's first cousin and asked him to manage the business. The business manufactures large architectural glass for residential and commercial premises. Mr Johal invested £50million in setting up the Manchester business. He has other companies in his group producing glass, some laminated, some toughened, in London and Swindon at least.[7]The claimant alleged he did not get paid for the first 18 months of his employment. However, this was not a matter on which he relied for a claim nor was it truly germane to deciding credibility and therefore I have made no finding in respect of this.[8]The respondent gave contradictory evidence regarding the claimant's performance. Mr Johal said that the claimant was always to some extent a problematic employee and that the number of customers had reduced from 100 at the beginning of the business to 12 at the end. However, in his witness statement he said problems only began in June 2017.[9]I find that there were likely to be problems from to time over a 19 year period. The situation was that the claimant had considerable autonomy at the factory but Mr Johal was very much “hands on”, by the telephone, he rarely actually visited Manchester. The evidence was he would be quite abusive on the telephone and would not listen to what people had to say. I accept that he was like this to some extent from the evidence given by the claimant and Mr Birdi. The claimant recruited Mr Birdi towards the beginning of his time at the factory. He was an engineer and he worked as an engineer until some time after the claimant left. Mr Chinthala was recruited later on, and became more or less the claimant’s deputy.[10]For completeness sake I should say Mr Johal operated as overall Operations Manager and Managing Director. Mrs Johal was initially in charge of payroll and latterly HR.[11]Mr Chinthala left in 2015 and went to work at the respondent’s Swindon factory before leaving again to work in his wife’s travel agent business. He said in reexamination that the event which led him to issue a grievance against the claimant was that he had been off sick and when he returned the claimant had appointed his own son (Mr Heire’s) in his place and would not give him back his previous role. However, this grievance was not in the bundle and therefore it was not supported by any documentary evidence.[12]The claimant said after Mr Chinthala was appointed by himself in 2002 and was trained up Mr Johal was more confident that he could manage without the claimant and became more abusive and critical towards the claimant. In one incident in 2004-2005 Mr Johal told the claimant to “f… off and get out of the factory”. Mr Chinthala was sent to collect the company car keys from the claimant's home, but after intervention from Mr Birdi the message came back to the claimant through Mr Birdi that he could return to work.[13]During the hearing the respondent alleged that the claimant would often resign and disappear for a few days and then turn up, and that this was his normal behaviour. There was one example in the bundle from 2006 of a letter from Mr Johal stating that by mutual agreement the claimant was leaving. However, the claimant stated that he had never resigned and that this was all Mr Johal’s doing. Indeed, the letter was signed only by Mr Johal and there was no corroboration at all regarding this incident.[14]In 2016/2017 the claimant had difficulty retaining staff. He said he asked the respondent several times to give employees pay rises but they were always refused. The respondent denied this and said the claimant could have given staff pay rises at any time. I accept the claimant's evidence in this regard because it is inherently improbable that a General Manager with no shares in the business and not a Director would be able to this, particularly in a business with an operationally hands on manager such as Mr Johal.[15]The event which led to this claim being brought began on 19 June. The business was providing glass to a sister company and their manager, TP, called the claimant on 19 June to complain about some marks on the glass. The claimant said he would check the other panes of glass to see if it was an ongoing fault but could find nothing wrong with any of the glass, but just be sure he decided he would close the furnace over the weekend and thoroughly clean the ceramic rollers. Usually this takes 36 hours so he expected to be up and running by Tuesday evening. However, on this occasion it proved to take longer.[16]TP reported the marks to the Johals and as a result Mr Johal rang the claimant about it. The claimant explained about closing the furnace down and stated that some of the problems regarding laminate glass were nothing to do with him as this glass had been provided from elsewhere within the business.[17]On 20 June the claimant advised TP of the plan to close the furnace. The next day, unbeknown to the claimant, Mr Birdi was asked by Mr Johal to check the glass but not to tell the claimant. He did so and found there were no marks. He also decided to contact JW, a surveyor and senior employee, also working for the sister company TP worked for to ask about the marks. JW said that they had cleaned the marks and they had come off quite easily.[18]Mr Johal rang Mr Birdi again before Mr Birdi had been able to report back and in any event at this juncture Mr Birdi explained what he had found out. He then said that Mr Johal embarked on a “rant” about the claimant, saying he had hidden agenda and was trying to destroy him. Mr Johal said he had to get rid of him before he destroyed the company, and he would send someone from London to take over.
Findings of Fact
[19]Mr Birdi heard nothing more and presumed Mr Johal had calmed down as before. The respondent opined that Mr Birdi’s evidence was biased as he owed the claimant a favour as the claimant had got him the job at the respondent, however I found Mr Birdi a convincing and candid witness, for example he admitted he was there to support the claimant and he admitted they were close friends. However, I found his evidence convincing as it was also corroborated by Mr Johal on occasions, agreeing that he had had the conversation with Mr Birdi about the glass and that at the same time he had expressed concerns about the claimant.[20]Unfortunately, after closing down the furnace it could not be restarted properly on the Tuesday and it was producing a defect in the glass so trial runs had to be undertaken on the Tuesday. The claimant was very busy and stressed dealing with this. As a result the claimant candidly agreed that he had failed to either directly inform the client due for a delivery the next day, or ensure that somebody ensured the client that the delivery would not take place. The glass was being delivered to the Group’s biggest client but it was not a large amount of glass.[21]On 28 June the client emailed the claimant to ask where the glass was. It was not an aggressive email and the claimant replied almost immediately, explaining the delay and assuring them they would have their glass by Friday. The same day the client’s Head of Sales also emailed Mr Johal to complain about the delay and failure to warn them, and also about the claimant's attitude. It is not clear what this attitude, possibly the claimant's reply email was insufficiently apologetic. However, the Head of Sales was not overly concerned as he said he would visit Manchester and try and sort out the issues and simply wanted a steer from Mr Johal about preventing this happening in future.[22]The claimant said he was just so busy that day that warning the client went out of his mind, that he was even busier than usual because he had problems with his Office Manager who had an injury that was causing him some pain, but he held his hands up and said it was not what usually happened.[23]Mr Johal rang the claimant several times that day, 28 June, before he managed to get hold of the claimant. He forwarded the Head of Sales’ email to the claimant and asked him if he had seen it. He said he had not, but opened it while he was on the phone. I find that Mr Johal was angry at this point. It was clear in the Tribunal that he was extremely frustrated at having been unable to get hold of the claimant and needing to ring so many times, as well as being annoyed about the incident itself given the size of the client. I accept the claimant’s evidence Mr Johal would not accept his explanation and that he eventually said to him, “You are trying to get rid of my customers, I am not having it”. I accept this, as amongst other things it was consistent with what he had said to Mr Birdi. I also accept that Mr Johal said he was going to get rid of the claimant and would be sending someone else to replace him. Again, this was consistent with Mr Birdi’s evidence.[24]The claimant subsequently rang Mr John Coomber, the Commercial Manager, to discuss what had happened up until then. He was hoping Mr Coomber would intercede with Mr Johal and put forward the claimant's explanation for what had happened in order to placate him.[25]Mr Johal agreed that he knew the claimant did ring Mr Coomber and suggested he rang him to confirm his resignation, not to relate what had happened with Mr Johal. However, it is inherently unlikely that he would have rung him simply to say he had resigned. Also I do not accept this because if he had told Mr Coomber he had resigned, Mr Coomber would not have been able to hold the grievance that the claimant brought later (being conflicted) and would have referred to this in the minutes of the grievance, whereas he tells the claimant in the grievance he understands he has been dismissed for incompetence.[26]Mr Johal then rang the claimant again on 29 June and asked for the telephone number of Mr Andrews. He told the claimant to give Mr Andrews the keys to the factory, obviously in order that somebody else could take over. The claimant agreed, but Mr Andrews when he came on the nightshift confirmed he had not been asked to take the keys off the claimant.[27]The claimant said that in the same conversation Mr Johal then told him to “fuck off” and “go and live on your pension”. Mr Johal in cross examination said he would not have said this as he did not know whether the claimant had a pension, as he certainly did not have a company one. However, on the probabilities I find he could have said this as the claimant was old enough to claim a state pension by this stage as he was over 65, and I find in favour of the claimant’s version of events for reasons of credibility I have set out at the beginning of this document.[28]The claimant then carried on working, although he believed he had been dismissed. He worked on Friday and on Saturday until lunchtime. He heard nothing more and so thought that Mr Johal may contact him and reinstate him. He attended work on Monday and found Mr Chinthala already there with two additional people looking round the factory. Mr Chinthala in evidence agreed he had been asked on the Wednesday to go to Manchester and help out. He was adamant in his evidence he was not taking over. I found his evidence too adamant, and in particular there was an issue that Mr Chinthala said he was just going to work for a few hours in Manchester, but then he said 20-25 hours. Clearly that is not a “few” hours and the only reason for working 20-25 hours would be if he was going to run the factory.[29]The claimant said he asked Mr Chinthala what he was doing there, and Mr Chinthala said that Mr Johal had rung him on the Wednesday and asked him to find some people and go and take over the business, and that the claimant should go home and rest for 5-6 months. Mr Chinthala says this was not correct, and that he said to the claimant that if he wanted to stay and was not resigning he could do so and Mr Chinthala would go away and only come back when the claimant retired. However, I do not accept Mr Chinthala’s evidence. His witness statement was strangely worded, referring to the claimant in recounting dialogue with the claimant as “the previously factory manager” rather Mr Heire or the claimant; there was inconsistency in his evidence regarding the hours, and it was inherently improbable he would have given up a job working virtually full-time for his wife for a few hours at the factory.[30]The claimant then left on 3 July. Mr Birdi subsequently rang Mr Johal to ask if he had asked the claimant, and Mr Johal said “yes”, because he could not trust him.[31]The claimant expected some sort of communication from the respondent, as would have the Tribunal. Even on the basis of the respondent’s case that the claimant had resigned with three days’ notice one would have expected in a period following 7 July that a letter would have gone to the claimant stating that his resignation was accepted (although not strictly required in law, it is good practice), or to give him details of any pay owed, or simply to record that he resigned with effect from 30 June. Mrs Johal said that it was an oversight that no such letter had been sent. She agreed that normally this should have been done, however I cannot accept that as up until the time when the claimant put in his grievance on 31 July there was no correspondence at all.[32]The respondent suggested the claimant's failure to bring a grievance before 31 July suggested the claimant was lying and that he only brought a grievance when he had received his P45. I do not accept that for the following reasons:(1) There was no real advantage to the claimant in contending for an express dismissal as he had grounds for constructive dismissal claim, as he eventually argued in the alternative;(2) He was very upset after 19 years of working and it took some time for him to gather his thoughts together;(3) This was not put to him in cross examination, that he only put his grievance in after the situation crystalised on the receipt of his P45;(4) That it can be seen from his email raising his grievance, which he sent on 31 July, that he had not received his P45.[33]The claimant, as referred to above, sent a grievance in on 31 July setting out the circumstances he was aggrieved about, including that he had been expressly dismissed. The main relevance of that grievance is as follows:(1) Mrs Johal did not immediately respond to the claimant's grievance saying, “what was he saying, he had resigned” as the respondent now contends;(2) That the grievance was not immediately dealt with, which one would expect where there was such a glaring disagreement;(3) That John Coomber’s, who conducted the grievance, minute suggested that he had understood the claimant had been dismissed for incompetence;(4) That those minutes could have been clarified by John Coomber if he had attended the Tribunal hearing and also he could have clarified the telephone call with the claimant, but he did not give evidence. It was said he was ill but there was no certificate produced to verify this. In any event his witness statement did not deal with any of these issues;(5) John Coomber took or received statements from Mr Johal and Mr Chinthala and concluded that the claimant had resigned on the Wednesday, giving three days’ notice. Conclusions[34]In respect of the factual dispute it is clear from my findings of fact that I preferred the claimant’s evidence and I find that the claimant was dismissed on 29 June when he was told to “fuck off” and go and live on his pension. If I am wrong in that then I find he was dismissed on 3 July when Mr Chinthala turned up to take over the factory. Unfair Dismissal[35]There is no need to recite the law on unfair dismissal, save that of course the respondent has to follow a fair procedure, and given that the claimant was dismissed on the spot no procedure was followed. Therefore, the claimant's dismissal was unfair. Contributory Conduct[36]The respondent said any award for unfair dismissal should be reduced for contributory conduct under section 123(6) Employment Rights Act 1996. In Nelson vs BBC No 2 (1980) CA it was established that contributory conduct has to be blameworthy or culpable.[37]The respondent relied on the events in June, however this was insufficient to establish contributory conduct. The claimant had good reasons for the two matters which arose. The client was not being very difficult about the matters and it was resolved quickly. Polkey[38]The respondent argued that the claimant would have been dismissed anyway under the Polkey vs AE Dayton Services Ltd (1988) HL principle. As far as the respondent argues the claimant could have been fairly dismissed for some other substantial reason, this is unsustainable as first of all the respondent has not pleaded “some other substantial reason” properly having conflated it with capability, and have never set out in their pleadings what they rely on for “some other substantial reason”.[39]Insofar as it was the claimant's performance in driving away customers the evidence was simply too thin to establish this and there was no documentary evidence of any difficulties other than the ones in June where the emails did not show any particularly difficult problem. Wrongful Dismissal[40]The claimant was wrongfully dismissed. There were no grounds for a summary dismissal on the grounds of gross misconduct and therefore the claimant is entitled to his notice pay. Unfortunately, due to there being no contract of employment it is not possible to ascertain what the notice pay is and this will have to be decided at a remedy hearing. Failure to provide written particulars
Findings of Fact
[41]The claimant was not provided with written particulars by way of a contract of employment as alleged in Mr Johal’s evidence. That evidence fell away under cross examination when it became clear that he had no actual knowledge of the claimant being sent a contract of employment. Mrs Johal had stated there was nothing in the personnel file other than details of the claimant's address, date of birth, etc., her brother had dealt with contracts before the respondent had got Peninsula involved in 2015, so again she had no direct evidence of a contract being sent out.[42]I am prepared to accept from my own knowledge that in general when Peninsula is engaged they would seek to ensure their clients sent out written contracts to all their employees, and it was advanced that the claimant had been sent Manchester employees’ contracts between 2015 and 2017 and some were actually signed and returned, albeit there was no actual evidence produced regarding this. While I would accept the general contention that this process occurred, there was absolutely no evidence that the claimant had been provided himself with a contract. If he had his contract would have to have been bespoke to some extent; it may have had similarities with other General Managers in Swindon and London but it would have been based on conditions particular to his situation.[43]In those circumstances it is inconceivable that there would be no template or draft, either on Peninsula’s system or the respondent’s system, or even a printed out contract, unsigned, in the personnel file. The respondent had contended the claimant had refused to sign the contract of employment, however if this was true I would have expected to see a blank contract in the claimant's personnel file and there was absolutely nothing.[44]There was no argument put forward by the respondent that the claimant had received his employment particulars by some other route.[45]Accordingly I find that the claimant was never sent a contract of employment and therefore the respondent had failed to comply with section 1 of the Employment Rights Act 1996.[1]The claimant was successful in respect of an unfair dismissal case promulgated on 19 November 2019 following which a remedy hearing was listed. Due to the problems arising from the COVID-19 pandemic it was not possible to list this hearing, which was by CVP, until October 2020. Unfortunately, it was not possible to finish all the evidence within the two days and the matter had to be listed for a further day, 1 December 2020. In the end it was limited to submissions on 1 December 2020 as the respondent decided not to call Mr A Chintalla and Mrs F Johal. Witness statements had been served in respect of each.[2]Further following a preliminary hearing held on 17 January 2019, I had agreed that the respondent could still pursue one issue relevant to remedy relating to the issue of “glass misappropriation” on the basis that it was not caught by issue estoppel or Henderson v Henderson, and the “car” issue. Witnesses[3]For the respondent the Tribunal heard from Mr Manjit Johal, Director of the respondent, and Mr Warren Evans, Business Associate. For the claimant the Tribunal heard from the claimant himself. Evidence[4]I have divided up the issues, recorded the evidence and then indicated my findings. I have not referred to every matter which was raised in cross examination if it did not help me make findings. The Law Just and Equitable[5]Section 122(2) of the Employment Rights Act 1996 refers to the issue of reductions in the basic award and states that: “(2) Where the Tribunal considers that any conduct of the complainant before the dismissal, or where the dismissal was with notice before the notice was given, was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly.”[6]In relation to the reduction in the basic award, misconduct coming to light after the dismissal is included in the meaning of section 122(2). In Hutchinson v Arkon Group Limited & Another, an EAT case from 1992, an employer demoted H, who then resigned and brought a successful claim of unfair constructive dismissal. After H left the employer discovered that he had, whilst still in the company’s employ, set up a rival business. The Tribunal held that this was a breach of trust and confidence warranting a 100% reduction in the basic award. Whilst the misconduct may have come to light after dismissal, the misconduct must have occurred before dismissal.[7]In Steen v A & S Packaging [2014] EAT the EAT stated the correct approach was for the Tribunal to:(1) Identify the conduct which is said to give rise to possible contributory fault;(2) Decide whether that conduct is capable or blameworthy; and(3) Decide whether it is just and equitable to reduce the amount of the basic award to any extent.[8]Section 122(2) is to be distinguished from contributory conduct under section 123(6) as it is unnecessary that the employee’s conduct should have caused or contributed to the dismissal, indeed the misconduct may only come to light after the dismissal, as referred to above.[9]The principle is set out in W Devis v Atkins [1977] Court of Appeal. In this case the employee was the manager of an abattoir who was dismissed because the employer was not satisfied with his methods of making purchases. Several weeks later the employer received information suggesting that the employee had been dishonestly dealing in live animals. The Tribunal ruled the employee’s dismissal to be unfair but decided, in light of the subsequently discovered information, that it was not just and equitable to make any award. The House of Lords upheld the Tribunal’s decision and said it was clear on the basis of the information that subsequently came to light that the employee could have been fairly dismissed if the employer had known about his conduct. The fact that the employee had not suffered any injustice meant that applying what is now section 123(1) it was not just and equitable that he should receive any award.[10]In relation to the compensatory award, section 123(1) provides: (1) Subject to the provisions of this section and section 124…the amount of the compensatory award shall be for such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.[11]Cases where Tribunals may decide it is just and equitable to reduce compensation under this head can be divided into two types:(1) Whereby the time of the Tribunal hearing the employer can show that the employee is guilty of misconduct that would have merited dismissal even if the employer did not know about that misconduct at the time of the dismissal; and(2) Cases where a dismissal has been rendered unfair solely because of procedural failings and the dismissal procedure, but the Tribunal is satisfied that the employee would nevertheless have been fairly dismissed at a later date or if the employer had followed proper procedure.[12]The second type is known as a Polkey reduction. This was not in issue here. Rather, the first scenario, misconduct not known to the employer at the date of dismissal. It is considered that the words “just and equitable” allow the Tribunal to decide this.[13]Whilst the Tribunal has already decided that there was no contributory conduct the Tribunal was entitled to consider the claimant's culpable or blameworthy conduct pre-dismissal which the respondent became aware of after dismissal in deciding what, if any, compensation the claimant should be awarded. Mitigation of Loss[14]Section 123(4) of the Employment Rights Act 1996 provides that: “In ascertaining the loss (sustained by the claimant) the Tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales…”[15]The test is simply whether the employee’s conduct in taking or refusing a particular source of income is reasonable on the facts of each case, and commonly whether sufficient effort has been made to find alternative remunerative work.[16]The burden of proof in establishing that the claimant has failed to mitigate his loss is on the respondent. Where a Tribunal finds that there has been a failure to mitigate loss the Tribunal then has to decide at what point the claimant should have mitigated his loss and what amount of earnings he was likely to have obtained had be properly mitigated his loss, and it must be that employee taking into account all their attributes, such as their age and health.[17]In Tandem Bars Limited v Pilloni EAT [2012] the EAT stressed that rather than concentrating on what the employee actually did to find work the Tribunal’s focus should be on the steps that were reasonable for him or her to take in the circumstances. It is accepted that older employees, pregnant employees and people in poor health are particularly likely to have problems obtaining new employment. Terms and conditions – particulars[18]Sections 1 to 6 of the Employment Rights Act 1996 (‘the 1996 Act’) set out the requirement to provide an employee with their terms and conditions of employment, it does not have to be the contract of employment but often it is. Where the particulars have not been provided under section 11 of the 1996 Act an employee can complain to the employment Tribunal and the remedy under section 38 of the Employment Act 2002 is either two weeks or four weeks’ pay. Findings of Fact Glass Misappropriation[19]Mr Johal the owner and MD of the respondent business (of which the claimant had run the Manchester branch) stated that when he attended the tribunal in Manchester he had a conversation with an employee, Anand Chintalla, (who was giving evidence at the original Tribunal for the respondent), about where the claimant lived. Although the claimant was his cousin he had never visited his home. He said he was just curious.[20]Mr Chintalla’s statement said: “About two days before the Tribunal hearing Mr Johal asked me what type of house the claimant lived in and how many properties he had.” Mr Chintalla said he was surprised by this as they were cousins. Mr Chintalla had been a tenant in one of the claimant’s properties and the claimant lived in the other.[21]Mr Johal asked Mr Chintalla if he had any photographs of that house and he advised him he did not have to have photos as he could use Google maps to see both houses. Accordingly, Mr Johal asked Mr Chintalla to do that and he sent him the links to both the properties.[22]On looking at the pictures Mr Johal asked him about the glass extensions and Mr Chintalla said they were not there when he was there.[23]Mr Johal said that he attended the properties on the first day of the hearing because he could see that there was a considerable amount of glass had been used at both properties to build conservatories, and he went to the properties to check that that was indeed the case. Photographs were taken. The claimant believed to obtain these photographs Mr Johal would have had to trespass on his property. Mr Johal wished to give evidence that he had not allowed or given permission for the claimant to use this glass on his properties. However, this matter was not discussed at length in the original Tribunal as I advised it was not relevant to liability issues and should not be pursued.[24]Its relevant to note that on attending Manchester for the purposes of the first Tribunal Mr Johal, owner and Managing Director of the respondent, advised me that he and his wife were travelling daily from London to Manchester and did not stay overnight[25]It should also be pointed out that Mr Johal’s version of what happened to identify the fact the glass was there differed between his witness statement at paragraph 4 and the letter of 18 December 2018 raising the matter with the claimant. The letter said: “On the first day of the at the Employment Tribunal in Manchester our client’s Managing Director and his wife attended at Tribunal after having visited your two properties in Manchester. Upon attendance at the two properties, one of which was rented out by you to a current employee of our client, it was discovered that glass manufactured at our client’s premises was installed in situ at both of your properties. This glass was discovered in situ for the first time on the morning of day one of the Employment Tribunal hearing. The glass was present absent out client’s knowledge and permission and was financially unaccounted for by you to our client…Our client’s Managing Director gave oral evidence of his latter discovery of the glass to the Tribunal and we understand of the fact that had he known of its existence sooner he would have had no option but to summarily dismiss you for its unauthorised misappropriation.”[26]Mr Johal’s witness statement states that on 1 October he became aware through an employee of the respondent that the claimant had obtained and used glass from the respondent in his home for the purposes of an extension which he had built which he had not authorised. This does not at all accord with either the letter or Mr Chintalla’s version of events.[27]In addition, the claimant pointed out that in fact the claimant's representative had mentioned this prior to the start of the Tribunal as it was being used in settlement negotiations, albeit it was suggested (and we have had a separate hearing on this) that the respondent’s representative at that time had indicated they were not going to pursue the issue at Tribunal. Accordingly the claimant said that that the different versions of events undermined the respondent’s credibility.[28]The photographs showed glass extensions or conservatories at each property. Mr Johal said he believed all the glass came from his factory and had not been paid for. Neither had he given the claimant permission to take the glass free of charge and would not have done so without knowing how much and what type. He stated that the claimant had not produced any evidence that he had paid for the glass, any invoices describing the glass or proof it had been agreed he could have it free of charge. He gave evidence that there was a system in place where glass which it was agreed members of staff could have free of charge was documented.[29]The respondent in support of their argument provided some documentation showing that for employees to receive glass without payment there always had to be a form that was filled in stating what the glass was, and it would be marked “FOC” (free of charge).[30]In relation to the “free of charge” all the documentation arose after the claimant's original hearing and therefore I find them irrelevant to the question of whether during the claimant's employment he was required to fill in this form. In fact the introduction of this evidence on the face of it could well have misled the Tribunal had the dates not clearly been noticed. There were a couple of invoices for glass being provided to Mr Johal, but these were simply recording the amount of glass and added nothing to any evidence regarding whether or not the firm did have a procedure where employees could request free glass and it would be approved.[31]Accordingly, I find there was no such procedure during Mr Heire’s employment.[32]The claimant's evidence was that he had had many conversations with the respondent late at night during his employment with the respondent until they fell out, and that he had discussed this with him in those conversations particularly in 2008 and no doubt Mr Johal no longer remembered this, but Mr Johal had agreed that the claimant could use glass from the company without payment. He would sometimes just tell him what he was taking and Mr Johal did not object.[33]There was other potentially contradictory evidence from the claimant – that Mr Johal would not have said no had he asked him, or had he asked him every time and that it was in effect a ‘perk’ of the job. In support of his contention that Mr Johal was rather blasé about his glass the claimant said thousands of pounds worth of glass had been left behind when the factory moved to different premises in Manchester. There was no verification of this so I did not take it into consideration
Conclusions
[34]In addition, the respondent relied on the testimony of Mr Warren Evans who was a client of the respondent in the sense that they would cut the glass.[35]Mr Evans was involved in the claimant's conservatory building. He gave evidence on behalf of the respondent to the Tribunal. In particular, in 2014 the claimant called and spoken to Mr Evans’ in-house architect, Bob. They were, to the best of Mr Evans’ knowledge, personal friends, and the claimant had called him asking him to manufacture some items of glass for him to use in an extension at his house. Some drawings were done by Mr Evans’ employees and the glass was delivered to them, Mr Evans imagined, in the respondent’s lorry for his employees to work on, and he presumed it was glass from the respondent’s company.[36]The claimant relied on this to show that he was not hiding the fact that he was using glass from the firm to construct his conservatory.[37]In respect of this issue arising in the Tribunal proceedings, Mr Evans said in early October 2018 the claimant and himself spoke on the phone and the claimant asked him to hold off disclosing for as long as possible the fact that he had glass from the respondent’s company delivered to him for work to be performed on that glass and subsequently returned. However, the claimant's version of this was that yes he had spoken to Mr Evans, who had rung him saying that Mr Johal had contacted him to give evidence, and that simply Mr Heire had said if he could just hold off doing that for as long as reasonably possible as this might avoid him having to eb involved.[38]The claimant gave evidence that he had three phone calls with Mr Evans:(1) The first to tell him he had won his case;(2) The second in which Mr Evans himself accepted he might have made to the claimant, and Mr Evans agreed with the claimant's paragraph 33 where he said that Mr Evans had called him “to inform me Mr Johal had been in contact with him to ask him about work Mr Evans had carried out for the claimant 4-5 years ago”, and that Mr Evans had said Mr Johal would be finding it hard to accept the fact the Tribunal Judgment had gone against him. The claimant said he said that Mr Johal was going a bit unhinged and Mr Chintalla seemed to be egging him on. “I said that Mr Evans should give Mr Johal the information he wanted but try and keep it to a minimum as he would only end up roping Mr Evans into the dispute”. Mr Evans said he had to work with Johal in the future and therefore he would need to pass on the information Mr Johal wanted but he would hold off a while. Mr Evans agreed that this was the gist of the conversation and accordingly the description in Mr Evans’ witness statement that the claimant sought to dissuade from mentioned the glass to Mr Johal was an exaggeration, and in fact it was put in a much more measured way;(3) The third conversation was on the day of the hearing. Mr Evans did not arrive on time and the claimant, although he does not remember it, believes he may have rung Mr Evans to see where he was and whether he was coming to give evidence at the Tribunal, and Mr Evans’ brother answered asking him to desist from contacting him.[39]Accordingly, I prefer the claimant's recollection of the telephone calls, which Mr Evans did not dissent from.[40]In addition, there was a dispute about the value of the panels with the respondent stating that they were worth £60,000 from looking at them. The claimant said they were probably worth £945, bearing in mind that they were used over a 12-13 period, that they 6mm opti-white glass panels and 6mm optiwhite K. At cost these are £7.50 per square metre and he calculated it thus: 24 square metres x 2 (£360), 14 square metres x 3 (£315), 12 square metres x 3 (£270). It was the claimant's evidence that even at retail price of £22.50 per square metre this would only amount to £3,000.
Findings of Fact
[41]Mr Johal had no evidence to corroborate his estimate of £60,000 and common sense suggests that considering the photographs and the size of the extensions it was highly unlikely that the cost of the raw materials for building those two conservatories would come to £60,000 given that the retail cost including building, electric, etc., of most average conservatories is around £20,000. There is nothing exceptional about these conservatory add-ons at all.
Credibility
[42]The issues really turned on credibility. The respondent suggested that the claimant was not credible because in cross examination he stated he did not have to keep asking Mr Johal because he would not have said no (this is whether he could have glass). This suggests that he did not ask on every occasion. There was also a lot of glass used, as can be seen from the photographs. He also let slip that he felt because of his position and what he was paid he was entitled to free glass. He did not keep any record at all of how much glass was used, and further they would ask the Tribunal to take into account the phone call with Mr Evans where he was trying to persuade him not to give evidence in relation to the glass.[43]I prefer the claimant's version of events. I was particularly concerned about the production of the “free of charge” invoices, which in my mind undermine the respondent’s credibility as they appear to have been manufactured post the liability hearing in order to support the respondent’s case regarding the glass misappropriation. The fact that there were no invoices at all from either Manchester or London prior to the claimant's liability hearing shows that there was no such system in place as suggested by the respondent. It also shows that pre the liability hearing there was glass being given free to employees, as it cannot be the case no glass was ever given free prior to the liability hearing then suddenly it was being given out. Accordingly, this is corroborative evidence of the claimant’s position that individuals were allowed free glass and no record was kept of it. The fact that there were two invoices prior to the liability hearing does not undermine this as they were to Mr Johal himself and were a record of what he had personally requested and required, not at all the same as the FOC invoices.[44]In addition, the claimant pointed out that Mr Chintalla was present as in effect Assistant Manager, described as the eyes and ears of Mr Johal throughout a significant period of the claimant's employment, and at no time did he feel the need to comment to Mr Johal on the existence of these conservatories, and he would have been aware that some work was being done either as a tenant of the claimant or because he was working at the factory. Accordingly either he mentioned it to Mr Johal and Mr Johal was unconcerned because he had given permission, or he did not mention it to Mr Johal because there was nothing unusual in the activity. There was evidence also that Mr Chintalla had received glass.[45]The respondent stated that an adverse inference should not be drawn from the fact that they did not call Mr Chintalla. The respondent had sufficient evidence without doing this, and that the Tribunal should look at credibility afresh. I did look at credibility afresh however there was a discrepancy in the different versions of how the glass came to light. Nevertheless I accept that it came up in casual conversation and that Mr Chintalla showed the google map photographs to the respondent and his enquiries went from there.[46]However, on the balance of probabilities I prefer the claimant's evidence in most respects, because it is inherently more plausible that Mr Johal would have forgotten the exchange given the passage of time and because the claimant’s evidence in regard to the Evans phone calls was coherent and ultimately agreed in the main by the respondent’s witness.[47]Therefore I find that he had asked Mr Johal for permission to use glass for some work at his property, and Mr Johal had agreed to it, as it appears he agreed on numerous occasions as is shown by the post liability hearing system that was brought in regarding free of charge glass. It was not surprising that after such a long period of time there would be no evidential trail regarding what glass was used and its cost. The claimant would firstly see no need for it, and even if he had seen the need the passage of time means that this paperwork was no longer likely to be available as all the glass was installed by 2015. On the balance of probabilities, it is more likely that Mr Johal has forgotten these conversations than that the conversations never took place. They had a good relationship at the time.[48]In respect of the claimant’s cross examination answers which were inconsistent with his primary case that he had express permission I find that the claimant was a rather voluble and garrulous individual who was speculating on what would have had happened if there was no express permission. Car[49]Separately from the glass misappropriation point was the issue of the car provided to the claimant when he began working for the respondent. The car was not raised until later on in the proceedings, but the respondent’s case was that it was not a gift and that the claimant should give credit for the value, which they say is £700. The car was registered in the claimant's name and the claimant was responsible for insurance. He was responsible for arranging and paying for the MOT and after the first year he paid the car tax. He also arranged and paid for any repairs, including replacement tyres, etc. If the car had not been a gift I would have expected there to be some paperwork around this – emails of some description – setting out an agreement between the parties, and that if it was in essence a company car owned by the company they would have been paying for the insurance, the MOT, repairs, etc.[50]Accordingly, on the balance of probabilities I find that the car was a gift to the claimant and he does not have to give credit for the value. Future Employment[51]Another issue which arose was how long the claimant was intending to work for. This had come up at the liability hearing as part of the respondent’s case was that the claimant had always said he was intending to retire quite soon. The claimant now states that he was intending to carry on working for the respondent for a period of time in order to ensure the new factory was up and running – it had moved from Wythenshawe to Cheadle. In his witness statement the claimant said he believed it would take another four years to get into a position where he could leave it, and the intention was that he and his right-hand man, Mr Birdi, would retire after the four years, however the claimant was dismissed and Mr Birdi then retired quite soon afterwards.[52]The respondent suggested that this was nonsense and that Mr Chintalla had advised that the claimant had made the decision to retire in September 2017, although the Grounds of Resistance said June 2017. However, in my Judgment on liability I found this was not the case. The respondent stated this was unlikely given that the claimant had a difficult relationship with Mr Johal by this stage and that he had been in relatively poor health and in his late sixties and in receipt of a pension income of approximately £1,350 per month. However, I do not accept that the receipt of that pension income would make any difference whatsoever to the claimant's decision as to when he would retire. However, I do think it unlikely that the claimant would have worked for another four years given how difficult things were becoming generally, and I find it is likely that the claimant would have left voluntarily within 12 months of his dismissal. I also considered that that resignation would have been without any constructive dismissal liability arising although I was not addressed specifically on this it is inherent to a finding in this area that there is no other erstwhile unfair dismissal related reason for the employment ending. Mitigation[53]In relation to whether the claimant has mitigated his loss, the claimant did apply for other jobs. There are very little jobs available in this specialised area, but he failed to secure a position in the two he applied for. He has written to ask them to keep him in mind for future roles, however taking into consideration age discrimination generally in the workplace it appears unlikely that the claimant would obtain further employment due to his age. He is 70 on 15 January 2021, and it is highly unlikely as well that he could obtain employment in respect of his previous work where he was Head of Department of Business Studies and Staff Development at South Manchester College until September 1998. Obviously, he had been out of that line of work for a very long time and took early retirement and his teacher’s pension, therefore it is implausible he would be able to obtain paid work in that sector. Accordingly, I find the claimant has mitigated his loss.
Summary
[54]Accordingly, I find that the respondent cannot rely on the allegation of glass misappropriation to reduce or extinguish the claimant's compensation, as I have found factually that the glass was not misappropriated for the reasons given above. I find that the claimant did seek to mitigate his loss sufficiently, however I do find that the claimant would not have worked for another four years: I find on the balance of probabilities he would have worked for another 12 months. In addition, I find that the car was a gift.[55]Statement of terms and conditions of employment[56]The claimant did not have a statement of terms and conditions and whilst I accept the evidence that he was responsible for passing employment contracts onto the workforce he managed that does not absolve the respondent’s from a responsibility to ensure the claimant had a contract. Accordingly, I award 2 weeks in relation to this, as there is a mitigating factor.
Award
[57]Accordingly, I make the following award:(1) Unfair dismissal – basic award 1.5 x 17 x £489£12,469.50(2) Unfair dismissal – financial loss 12 months from the claimant's last day of employment – from 29 June 2017 to 28 June 2018 – 52 weeks x £535.71£27,856.92(3) Loss of statutory rights £500.00(4) Failure to provide written statement of particulars of employment – 2 x £489£978.00 Total £41,804.42 Employment Judge Feeney Date: 6 July 2021