Mr R Heals v Refining Direct Ltd: 2424021/2017
JUDGMENT
[1]The claimant's claim of unfair dismissal pursuant to section 104 of the Employment Rights Act 1996 is not well-founded and is dismissed.[2]The claimant’s claim for unpaid accrued holiday pay and unpaid notice pay is not disputed and succeeds in the amount of £323.60.REASONS
[1]Mr Heals resides in Texas, USA, and he participated in the hearing via video link in accordance with directions given by Regional Employment Judge Parkin on 12 September 2018. The hearing commenced at 11.00am each day to accommodate the time difference so far as the Tribunal was reasonably able and finished at 4.00pm and 4.30pm respectively. The Tribunal room was reconfigured so that Mr Heals could see me and all those in attendance, including witnesses and counsel.[2]At the outset of the hearing it became evident that Mr Heals had an annotated bundle of documents and witness statements. Mr Heals went through his bundle and identified the documents annotated and with the assistance of respondent’s counsel it was agreed that he could give his evidence and be cross examined using that bundle of documents. Mr Heals had a clear copy of his witness statement and was referred to online versions of the respondent’s witness statements during his evidence.[3]The issues had been addressed in an earlier preliminary hearing before Employment Judge Emerton but were further refined at the outset of this hearing as follows: Unfair dismissal – section 104(1)(b) Employment Rights Act 1996(1) Did the claimant allege that the respondent had infringed a statutory right? Or, applying section 104(3) of the Employment Rights Act 1996, did he make it reasonably clear to the respondent what right he claimed to have been infringed? The claimant says that he alleged a breach of the Working Time Regulations 1998 that he should not be required to work in excess of 48 hours per week.(2) If so, did he do so in good faith?(3) If so, was that the reason or principal reason for his dismissal? The respondent disputes that the claimant made any such allegation but if one was made, asserts that the reason for dismissal was a breakdown of the relationship between the parties.(4) As the claimant does not have sufficient continuous service to claim ‘ordinary’ unfair dismissal, the burden of proof falls on him to establish the reason for dismissal. Holiday Pay and Notice Pay(5) The respondent accepts that the claimant is owed sums for unpaid notice and holiday pay in the amount of £323.60.[4]At the outset of the hearing, at the request of both parties, the Employment Judge listened to an 11-minute recording of a telephone conversation between the claimant and the respondent’s Director, Mr Jonathan Hargrave, a full transcript of which was provided within the bundle of documents.[5]On Friday 2 November 2018 Mr Heals had sent an additional set of documents to the respondent. The respondent objected to these documents as being prejudicial and irrelevant to the issues in the case. The documents relate to Mr Hargrave’s business practices and Mr Heals wanted to rely on them to illustrate that ‘Mr Hargrave is comfortable giving misleading evidence or information’.[6]Having looked at the documents for the purposes of determining their relevance, I was satisfied that they were not relevant to the issues to be determined, that they referred to matters beyond the remit of this Tribunal and were more prejudicial than probative. Further, the late service of the documents meant that the respondent had not had sufficient time to provide any evidence of their own to contest them. For these reasons I refused to admit those documents.[7]I heard evidence first from Mr Heals and then from Mr Hargrave and Mr Michael Ledbrooke, Sales Manager of the respondent company. During their evidence they were all referred to documents contained within the agreed bundle. Findings of Fact relevant to the Issues[8]Mr Heals commenced employment as a Field Sales Representative on 24 April 2017. He was dismissed on 15 August 2017.[9]The respondent’s business is to reach agreement with Dental Practices around the country to purchase dental metal waste and recycle the metal. Mr Heals’ terms and conditions of employment specified his hours of work as 9.00am to 5.00pm Monday to Friday and his place of work as, “You are based at your home address. However you are required to attend the company’s premises or any other location when requested”. The contract incorporated the respondent’s disciplinary procedure which reserved the right to discipline or dismiss without following the disciplinary procedure if the employee had less than 24 months’ continuous service. Mr Heals was allocated a sales territory covering the South West of the UK.[10]Mr Hargrave explained that during initial induction training he made it clear to Mr Heals that he was expected to arrive at the first Dental Practice of the day by 9.00am.[11]On 19 May 2017 Mr Heals attended a sales meeting during which Mr Ledbrooke went through a ‘guidelines and procedures’ manual that he had developed which included a number of key performance indicators including a target of 14 Practices to be visited per day. The guidance stated: “Typical business hours of Dental Practices are 9.00am to 5.00pm with a lunch break normally between 1.00pm and 2.00pm therefore I expect staff to be on site and outside their first Practice ideally for 8.45am. In the unlikely situation of being held up in traffic 9.15am at the latest. Given the fact we are dictated arrival from times that are out of our control, for example a serious road traffic accident and/or road closures that will see you with an ETA later than 10.00am, a call to either Jonathan or Mike is required, as is a call should you find yourself leaving your last Practice prior to 3.30pm.”[12]Mr Heals confirmed that he was aware of this requirement and that until at least 14 August 2017 he had never raised any concerns about the requirement to be at his first Practice by 9.00am.[13]During cross examination Mr Hargrave acknowledged that, as workers without a fixed place of work, the travel time from the home base, which was either the sales representative’s own home or a hotel if they were staying in the field, counted as time towards the maximum working time of 48 hours under the Working Time Regulations. However, he explained that it was common practice for sales representatives to head home early on a Friday as Practices often closed early on that day, and he was confident that Mr Heals had never exceeded 48 hours in a week. However, Mr Hargrave was reliant upon self-reporting by his sales representatives and at the time of Mr Heals’ employment he had no systematic method of recording the working time of the sales representatives.[14]Mr Heals told me that he regularly exceeded 48 hours, through a combination of travelling long distances and miscellaneous preparatory and paperwork duties, some of which had to be done during the weekend. Mr Hargrave and Mr Ledbrooke explained that the role required a modest amount of paperwork and any weekend work was minimal and I accepted their evidence on that point. Mr Heals kept his own records of time spent, the veracity of which the respondent disputed. Mr Hargrave pointed to times on which Mr Heals had texted his last report of the day which were at odds with the time recorded by Mr Heals. However, Mr Hargrave conceded that, as the report was usually texted by the sales representative from outside the last practice visit of the day, it would not take account of travel time and this could explain the discrepancy.[15]I accepted Mr Heals’ records as a genuine attempt on his part to estimate his working time, although they clearly erred on the generous side and were not entirely accurate. It was apparent, however, that, including travel, Mr Heals regularly worked more than the 40 hours for which he was contracted, and sometimes more than 48 hours per week.[16]Mr Ledbrooke gave evidence that performance issues were evident with Mr Heals from early on in his employment. Mr Ledbrooke told me that Mr Heals regularly did not meet his performance targets and that he tried to discuss this with Mr Heals to find out what the issues were and to give advice on how to improve. He said that Mr Heals would respond in a defensive manner. He gave an example of a text exchange, a copy of which was contained within the bundle, whereby he had queried discrepancies between Mr Heals’ stock levels of notepads and chocolates - both of which were given to out to the dental Practices. Mr Heals’ reply was, “don’t appreciate the tone, I was overstocked, thanks”. Mr Heals explained that this had simply been a misunderstanding which was amicably resolved. On reflection he appreciated that his text had been a little harsh and he had regretted sending it and so had deleted it from his phone. Upon receipt of the text Mr Ledbrooke had called Mr Heals to discuss the matter. He described Mr Heals’ behaviour during that conversation as volatile and aggressive to such an extent that he had to terminate the call and ask Mr Hargrave to intervene. Mr Hargrave spoke to Mr Heals who apologies to Mr Ledbrooke and they agreed to put the incident behind them.[17]The respondent relies upon this incident as an example of Mr Heals’ attitude when challenged about shortcomings in his performance. Mr Heals insisted that this was a minor matter that had been resolved and was being blown up out of all proportion to undermine his evidence. Mr Heals had explained to both Mr Hargrave and Mr Ledbrooke that, because of a difficult relationship with his father, he was particularly sensitive to what he categorised as “destructive criticism”. Mr Hargrave and Mr Ledbrooke explained that, in fact, Mr Heals was overly sensitive to any form of criticism, constructive or otherwise.[18]Although Mr Heals was sometimes working longer hours than his contract specified, he did not complain about it. He told me that this was because he needed the job to bring his American wife to the UK. Whilst I don’t doubt that was the case, Mr Heals had many opportunities to raise concerns about excessive hours but he chose not to do so.[19]Mr Hargrave arranged a sales meeting to be held on 14 August 2017 with representatives joining by telephone conference. Mr Heals was told to ensure that he was parked up safely and had signal strength before his allotted time slot of 8.45am. As he explained to me, this meeting set back his arrival time at his first Practice by an hour to 10.00am. During that day he managed to call on eight Dental Practices, spending 45 minutes and 50 minutes respectively with two of the Practices, considerably longer than the standard expectation of “no more than 15 minutes”.[20]Mr Hargrave called Mr Heals at 16:51 that day. As he was driving, Mr Heals returned the call to Mr Hargrave at 17:08. The content of that telephone call was disputed. Mr Heals insists that he made a detailed and accurate note of what was discussed later that evening. Mr Hargrave disputes that note is accurate. Both agree, however, that Mr Hargrave was critical of Mr Heals for attending his first call around 10.00am, for the modest number of Practices that he had visited throughout the day, and the length of some of those visits. Mr Heals described Mr Hargrave as being challenging and angry and refusing to accept his explanations, whereas Mr Hargrave recalled that it was Mr Heals who was challenging and refusing to accept his guidance.[21]In his note of the conversation, Mr Heals recorded that he had told Mr Hargrave that he had got up at 6.00am to leave at 7.30am and that Mr Hargrave’s response was to ask if he was saying that he couldn’t be at his first appointment in the mornings by 9.00am? Mr Heals had replied that it hadn’t been a normal day and had added “we are also working 55-60 hours a week average in this job, and there are so many hours you can drive before you crash and kill yourself”.[22]Mr Heals recorded giving a detailed explanation to Mr Hargrave for the length and number of Practice visits that day and stated that he had had to work way over contracted hours anyway. He recalled that as soon as he mentioned the working hours issue Mr Hargrave snapped and got angry and said something like “tell you what, Rob, I’m exhausted. You’re exhausting me. Drive home and we’ll arrange for you to drop the van and stuff off at the office” then paused and said, “Just go in and phone me at 9.00am tomorrow”.[23]Mr Hargrave was insistent that whilst they did discuss Mr Heals’ explanations for his performance that day, he only raised being required to work 55-60 hours in a second telephone call the following morning. On his behalf, respondent’s counsel pointed out several similarities between the note made by Mr Heals of the conversation on the 14th and the transcript of their conversation on the 15th August 2017.[24]On balance I accept Mr Heals’ account of that conversation as the more comprehensive and accurate. The fact that they covered much of the same ground again the following morning does not undermine Mr Heals’ account of what was said in the earlier conversation. However, it is apparent from Mr Heals’ own account of that conversation that Mr Hargrave’s was concerned about his performance; the duration and number of appointments he was doing, the failure to be at the first Practice by 9.00am and the explanations he provided for all this which Mr Hargrave was clearly not convinced by.[25]The content of the conversation the following morning is not disputed, and commenced after pleasantries with Mr Heals saying; “I didn’t sleep much to be honest. Sorry, I’m sorry for exhausting you, John, I was just trying to understand why you were so so angry with me”. Mr Hargrave replied that he was not angry but was bitterly disappointed with Mr Heals’ attitude the day before, which is what he found exhausting, saying; “I mean you know to summarise yesterday, I phoned you to say I’d had a look on the tracker to see if I could see anything, you know any point, and I did. I can see first of all you’ve turned up on site an hour late, which it was. Had to explain to you by that alone you’re losing 25% of your day, and that secondly is that some of your calls were excessively long, and do you know what, Rob, I think what I’m more taken aback with is just how you’re not willing to take that constructive criticism in.” Mr Hargrave went on to say: “It’s unacceptable, Rob, and do you know what I’m phoning you to tell you and what I’m met with is just this defiance of, you know, how dare I question it, basically.” Mr Heals replied; “No, John, I was trying to explain to you about the hours. I mean we’re averaging 55-60 hours a week evenings and weekends.” Mr Hargrave responded; “I said it to you yesterday about that. I said you said you’re working weekends. Well quite frankly, Rob, this job requires minimal paperwork. I mean you do your notes as you go along during the day and the mapping out, it’s a daily thing, takes around about 20 minutes. There is I mean on Friday, we finish very early on Friday, you know, which gives you time to get all your paperwork done and your postage all done. If you’re working over the weekends I’m sorry, Rob, you’re doing something wrong, you know, but again if I’m going to tell you that, Rob, and you’re just not going to listen to me I don’t know what you want me to do.” Mr Heals went on to explain; “It’s a bit more than you realise with the paperwork, and the routing and stuff in the evenings, and then the bits in the weekend and the stuff, it does add up.” He continued to explain the circumstances giving rise to his arrival at 10.00am the following morning, saying “I’m contracted 9.00am to 5.00pm. Travelling to a first appointment as you know is work time, so you’re asking me to add even more work time in when, you know….” To which Mr Hargrave then responded: “Listen, Rob, listen I’m going to cut the conversation short. I’ve had a think about things and your attitude this morning is telling me my decision is right, and I’m gonna, what I’m gonna do, Rob, you know I’m just going to just call it a day I’m afraid so I don’t require you to work. You’ve got a week’s notice. You’ll be paid in lieu for that so just want you to head home. Give me a call later on today to let me know how you intend to get the van and all the stock back to me.” Mr Heals asked; “So that’s my attitude, John, about the hours is it? Trying to explain about the….” To which Mr Hargrave stated; “No, it’s not. It’s your defiance, Rob. It’s staring you in the face, you know you’re supposed to be at the first call at 9.00am. I mean the part where you said you think you’ve been led to believe it’s acceptable. We’ve always said if you had a very, very lengthy drive, I mean like four hours or something like that, if you turn up to your first call we won’t be barking down the phone at you if you turn up at 9.30am, but you had a two-hour journey there, you knew that we had this phone call conference planned so you should have been up there and organised and ready for that phone call. You should have been parked up like other people yesterday ready to go in the first call straight after us speaking but you weren’t.”[26]Mr Hargrave explained that he had decided overnight that he would give Mr Heals another chance depending on his attitude when they spoke the next morning. However, from the outset of their second conversation, it was clear that Mr Heals was not prepared to accept criticism of his performance. Mr Hargrave said he realised from very early on in that second telephone conversation that he could no longer work with Mr Heals given his attitude and so dismissed him. Mr Heals firmly believes that his reference to working hours is what triggered his dismissal.[27]Mr Heals’ dismissal was confirmed by letter of the same date. The reason given was; “Due to your unwillingness to take on board constructive criticism which is vital for your role. Furthermore, a clear breakdown in relationship.”[28]It was apparent that Mr Hargrave’s primary concern was that Mr Heals would not take responsibility for arriving late at the first Practice but was offering various excuses and explanations which, fairly or unfairly, Mr Hargrave was not prepared to accept.[29]Having heard the evidence of all the witnesses and taking account of the documentary records provided, I find that Mr Hargrave terminated Mr Heals’ employment through frustration at his explanations for his actions the previous day and in the light of his ongoing concerns about Mr Heals’ performance. I find that Mr Hargrave genuinely believed that Mr Heals was not willing to take constructive criticism and so he could no longer work with him.[30]Mr Heals’ reference to 55-60 hours was not the reason or principal reason for Mr Hargrave’s decision to dismiss him. In any event, the statement that he was working 55-60 hours does not amount to an allegation that Mr Hargrave had infringed a right conferred by the Working Time Regulations i.e. the statutory maximum of 48 hours. At no stage did Mr Heals point out that he was being required to work more than the statutory entitlement. His reference to those hours was to support his assertion that he was working beyond his contracted hours and was putting a lot of effort into the role.The Law
[31]S104 Employment Rights Act 1996 provides:(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.(2) It is immaterial for the purposes of subsection (1)— (a) whether or not the employee has the right, or (b) whether or not the right has been infringed; but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.(3) It is sufficient for subsection (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what the right claimed to have been infringed was.[32]Any of the rights conferred by the Working Time Regulations 1998, including the right provided at regulation 4 that weekly working hours shall not exceed 48 unless the worker’s agreement has been obtained in writing are included as statutory rights for the purposes of S104.[33]It is automatically unfair to dismiss an employee under S104 if the reason or principal reason is that they have brought proceedings against the employer to enforce, or alleged that the employer has infringed, a relevant statutory right. Provided the employee's claim is made in good faith it does not matter if he had the right or it was infringed. The employee must make it reasonably clear what right he claims has been infringed. The Tribunal’s Conclusions[34]The Heals references to working 55-60 hours a week, or to working long hours did not amount to an allegation of infringement of the statutory right not to be required to work more than the maximum 48 hours. Mr Heals referred to hours by way of explanation/mitigation for his performance, he was not seeking to inform Mr Hargrave that his rights were being infringed upon, nor was it reasonably clear that Mr Heals was referring to this right; he was responding to criticism of his later start time by pointing out that he was working beyond his contracted hours to be at his appointments by 9am.[35]In any event, I accepted Mr Hargrave’s evidence that it was Mr Heals’ poor performance, exacerbated by his failure, in Mr Hargrave’s view, to take responsibility and accept criticism, that was the reason for his dismissal and not his reference to working long hours.[36]On the balance of probabilities, Mr Heals has not established that the reason or principle reason for his dismissal was the assertion of a statutory right and accordingly his claim of unfair dismissal fails and is dismissed. Employment Judge Howard Date: 14th November 2018