Mr A R S Hodgson v Coca-Cola European Partners Great Britain Ltd: 2500368/2019
EMPLOYMENT TRIBUNALS
Case No 2500368/2019Venue NORTH SHIELDSHearing 13 August 2019
Between
Mr A R S HodgsonClaimantCoca-Cola European Partners Great Britain LtdRespondent
Before
Employment Judge GarnonDate 13 August 2019
JUDGMENT
The claim of unfair dismissal is not well founded and is dismissed
REASONS
[1]Introduction and Issues 1.1. The claimant, born 29 September 1978, was employed from April 2003 until his dismissal with notice effective on 19 December 2018. He claims unfair dismissal only. He was an Operator Technician in a plant where strict hygiene measures are wellpublicised. The respondent says he failed to adopt those measures. 1.2. The liability issues are: 1.2.1. What were the facts known to, or beliefs held by the employer which constituted the reason, or if more than one the principal reason, for the dismissal of the employee? 1.2.2. Were they, as the respondent alleges, related to the claimant’s conduct? 1.2.3. Having regard to that reason, did the employer(a) have reasonable grounds after a reasonable investigation for its genuine beliefs(b) follow a fair procedure(c) act reasonably in treating that reason as sufficient to warrant dismissal?[2]Findings of Fact 2.1. I heard for the respondent the dismissing officer Mr Steven Dean Senior Manager of Operations and Engineering, and the appeal officer Mr John McCafferty. I heard the claimant. I had an agreed document bundle 2.2. The respondent makes bottles and sells for public consumption various drinks. It has hygiene rules which say:[1]Hands must be washed on entry to the production area using soap and hot water. Hands must then be completely dried.[2]Hand sanitiser is supplied at entry to production areas -this does not replace hand washing but is provided as an optional step[3]Hands must be washed as required throughout the shift. Examples include but are not limited to ;(a) before starting work ( at shift start and after breaks)(b) after using the toilet or blowing the nose(c) after handling any waste or contaminated items[9]All staff and visitors must maintain high standards of personal hygiene 2.3. On 13 March 2018 the claimant was given a final written warning for an offensive remark made to a colleague about her sexuality. It read “ I have decided to give you a final written warning which will remain “live” for a period of 12 months… You should be aware that if you commit any further act of misconduct in the future you could face more formal action. If this were to happen during the period this warning is live .. the outcome may be more serious-including possible dismissal”. 2.4. The respondent carries out hand swab hygiene tests routinely for coliforms, enterococcus ( faecal bacteria) and the total count of bacteria in general. The testing procedure allows for counts of less than 10 for the first two and less than 100 for the last as acceptable. Enterococcus is the one which causes most concern. Employees who fail a test receive advice to begin with as to the correct hand washing procedures and are subsequently retested to ensure they have corrected their deficiencies. 2.5 The claimant failed two tests in 2017and no action was taken . He failed a routine swab test for total count on 14 March 2018 and was spoken to informally. On 5 June 2018 he failed a second swab test with an enterococcus count of 66 and a total count stated by the microbiologist to be too numerous to count. On 3 July 2018 Mr Anthony Davison, a production team leader, held an investigation meeting with him as regards the failed test on 5 June . He believed the claimant knew what he should have done but had not. He received counselling . 2.6. On 22 November 2018 he failed another swab test with an enterococcus count of 69 and a total count of over 100. On 28 November, Mr Davison held a meeting with him and said the allegation would be escalated to a formal disciplinary hearing . Prior to the hearing he was provided with all information as to the allegation and evidence in support. 2.7. On 11 December following a challenge by the claimant to the testing process a swab test was done . it showed the highest enterococcus count ever recorded on site of over 200 and a total count stated by the microbiologist to be too numerous to count 2.8. The disciplinary hearing on 19 December was held by Mr Dean. It lasted nearly two hours. The note taker, who participated in the meeting, was Mr Eddie Egan of HR . The claimant was accompanied by a colleague Mr Peter Scott. The claimant accepted he had failed three hand swab tests and said of the one on 11 December his hands were ”covered in dirt” during his shift and he did not have time to wash them. Mr Dean said that would not explain the result on enterococcus bacteria. After a break to consider the outcome, Mr Dean decided , as he had a live final written warning on file, he was to be dismissed . But for the live final warning, Mr Dean thought he would have been given a first written warning . He was paid in lieu of notice. 2.9. He was informed of his right of appeal which he exercised on 23 December . By letter of 9 January he was invited to an appeal hearing which was a reconsideration of the matter by Mr John McCafferty on 17 January 2019 . The claimant was accompanied by a colleague Mr Paul Godsmark. At the hearing the claimant provided a letter from his doctor concerning a skin condition. The meeting was adjourned and Mr McCafferty consulted the site microbiologist who confirmed the bacteria which would result from the condition affecting the claimant’s hands as described in his doctor’s letter were of a different type to those which would result in him failing a hand swab test on enterococcus bacteria. Mr McCafferty decided the dismissal should stand. Had it not been for the final written warnin , he thought the claimant would have been given a final written warning or dismissed because of(a) the seriousness with which the respondent takes repeated instances of failure of tests for enterococcus and(b) at no point in the investigation, disciplinary or appeal process had the claimant said he needed further training as to what to do. On the contrary he said he knew how to wash his hands, and did. 2.10. The claimant says he has evidence the decision of Mr Dean was made before the hearing. The evidence is what he was told by a colleague who said that when discussing on what day to hold a Secret Santa event, Mr Dean said it could not be on the 19th because he was sacking two people that day. Mr Dean denies this and I accept what he probably said was that he was holding two disciplinary hearings that day, not that the outcome had been predetermined. 2.11. The claimant says there are other possible explanations for contamination of his hands but the respondent methodically considered the tests of other staff and that on 11 December the claimant, after washing his hands produced an acceptable result on a repeat swabbing, before deciding his failure to wash properly was the most likely. 3. The Relevant Law 3.1. The key to this case is a proper understanding of the law. Section 98 of the Employment Rights Act 1996 (“the Act”) provides: “(1) 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 – (a) the reason (or if more than one the principal reason) for dismissal (b) that it is either a reason falling within subsection (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. (2) A reason falls within this subsection if it relates to ..... the conduct of the employee.” 3.2. In Abernethy v Mott Hay & Anderson, Cairns L.J. said the reason for dismissal in any case is a set of facts known to the employer or may be beliefs held by him which cause him to dismiss the employee. Misconduct and incapability are sometimes hard to differentiate. Sutton and Gates ( Luton) Ltd -v- Boxall held a reason relates to capability if the claimant is trying his best and nevertheless failing, but relates to conduct if he is failing to exercise to the full such skills as he possesses. 3.3. Section 98(4) of the Act says: “Where an 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 all 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 (b) shall be determined in accordance with equity and the substantial merits of the case.” 3.4. An employer does not have to prove, even on a balance of probabilities, the misconduct it believes took place actually did. It simply has to show a genuine belief. The Tribunal must determine, with a neutral burden of proof, whether it had reasonable grounds for that belief and conducted as much investigation in the circumstances as was reasonable (see British Home Stores v Burchell as qualified in Boys & Girls Welfare Society v McDonald). 3.5. Ladbroke Racing v Arnott held rule which specifically states that certain breaches will result in dismissal cannot meet the requirements of section 98(4) in itself. The statutory test of fairness is superimposed upon the employer’s disciplinary rules which carry the penalty of dismissal. However, employers are entitled to place weight on matters important to them, see Meyer Dunmore International v Rodgers. 3.6. Retarded Children’s Aid Society-v-Day held where an employee appeared not willing or able to change his ways it would be reasonable for an employer to conclude warning him would be futile, especially if he had earlier been warned and done the same again. 3.7. The Court of Appeal in Davies-v-Sandwell Council considered the extent to which a Tribunal faced with a dismissal for which part of the reason was breach of an earlier warning could consider whether the earlier warning was fair. It held it is legitimate for an employer to rely on a final warning, provided it was issued in good faith, there were on the face of it grounds for imposing it and it was not manifestly inappropriate. The fact the warning is for something of a different nature does not preclude it being taken into account, see Auguste Noel Ltd-v-Curtis 1990 IRLR 326. 3.8 Hadjioannou-v-Coral Casinos contained guidance approved by the Court of Appeal in Paul-v-East Surrey District Health Authority. An argument that one employee received a greater sanction than others is relevant where (a) there is evidence that employees have been led to believe that certain conduct will be overlooked or dealt with by a sanction less than dismissal (b) where other evidence shows the purported reason for dismissal is not the genuine principal reason(c) where , in truly parallel circumstances it was not reasonable to visit the particular employee’s conduct with as severe a sanction as dismissal. None of these apply in my view 3.9. Iceland Frozen Foods v Jones (approved in HSBC v Madden and Sainsburys v Hitt), held the Tribunal must not substitute its view for that of the employer unless the view of the employer falls outside the band of reasonable responses. In UCATT v Brain, Sir John Donaldson said: “Indeed this approach of Tribunals, putting themselves in the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, “Would a reasonable employer in those circumstances dismiss”, seems to me a very sensible approach – subject to one qualification alone, that they must not fall into the error of asking themselves the question “Would we dismiss”, because you sometimes have a situation in which one reasonable employer would and one would not. 3.10. Taylor-v-OCS Group 2006 IRLR 613 held whether an appeal is a re-hearing of a review, the question is whether the procedure as a whole was fair. 4 Conclusions 4.1. I accept there is a possibility of other explanations for the claimant’s high readings on enterococcus, but the most likely is that he simply failed properly to wash his hands. That is what the respondent believed and it had reasonable grounds for doing so. 4.2. I accept the claimant was a long serving employee who has done good work. However, even such persons can act in a way which a reasonable employer could not be expected to tolerate. The respondent reasonably concluded if he was not dismissed, he may well produce unacceptable test results in future. 4.3. I can understand why the claimant feels his treatment for failure of swab tests went from very lenient to dismissal with notice rather suddenly. I also understand his view that in light of that final written warning the dismissal was inevitable .I do not accept it was pre-determined or outside the band of reasonable responses. I prefer the analysis of Mr McCafferty to that of Mr Dean as to what would have happened had the final written warning not been in place . 4.4. The beliefs held by the employer which constituted the principal reason for dismissal were that the claimant had , while on a final warning, failed three swab tests as a result of not washing his hands properly after using the toilet, and he showed no sign of being committed to improve his hygiene. That related to his conduct. The respondent had reasonable grounds after a reasonable investigation for its genuine beliefs, followed a fair procedure, at every stage of which the claimant was given every opportunity to put forward other explanations. Its view of what sanction was appropriate was well within the band of reasonable responses. The claim for unfair dismissal therefore fails. T M GARNON EMPLOYMENT JUDGE