Employment Judge SweeneyMr M Winthrop (instructed by solicitor) for claimantMr T Wilkinson (instructed by counsel) for respondentDate 25 April 2022
JUDGMENT
[1]The Claimant’s claim of unfair dismissal is well founded and succeeds.[2]The Claimant’s claim of wrongful dismissal is well founded and succeeds.[3]The compensatory award is reduced by 20% to reflect the fact that the Claimant would have been fairly dismissed[4]The Claimant contributed towards his own dismissal and the basic and compensatory awards are reduced by 10%.
REASONS
LIST OF ISSUES
[1]By a Claim Form presented on 25 November 2021, the Claimant brought claims of unfair dismissal and wrongful dismissal arising out of the summary termination of his employment on 06 July 2021. The Respondent resisted both claims. It maintained that it dismissed the Claimant for a reason related to conduct, namely fraudulently claiming overtime and theft of some scaffolding poles and that it acted reasonably in treating the reason as a sufficient reason for dismissal. The 1 of 37 Respondent further contended that, in the event that the dismissal might be found to be unfair due to procedural or other failings, the Claimant would have been dismissed in any event (relying on what is generally referred to as the ‘Polkey’ point). It also contended that the Claimant’s actions were culpable, blameworthy and entirely causative of his dismissal. On the wrongful dismissal claim, it maintained that the Claimant had, by his conduct, repudiated the contract of employment and that it was entitled to terminate his contract without notice.
The Hearing
[2]The claimant was represented at the final hearing by Max Winthrop, solicitor and the Respondent by Tim Wilkinson of counsel. The parties had prepared an agreed bundle of 236 pages. The issues are contained in the annex to these reasons.[3]The Respondent called two witnesses:(1) Mr Richard Martin, Deputy Head of Residence at HMP Northumberland (Mr Martin dismissed the Claimant);(2) Ms Ingrid Thompson, Head of Security and Safety at HMP Northumberland (Ms Thompson heard the Claimant’s appeal against dismissal)[4]The Claimant gave evidence on his own behalf.
Findings of fact
[5]The Claimant was employed by the Respondent as an Operational Support Officer (‘OSO’). His initial employment, which commenced in 2004, had been with Her Majesty’s Prison and Probation Service (‘HMPPS’). His employment transferred to the Respondent in 2013 under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’). The Claimant was based at HMP Northumberland (‘the prison’). He worked within ‘Facilities Management’ or ‘FM’, specifically within the control room. Snow & ice work[6]The general duties of his role are as set out on pages 48-49 of the bundle. In addition to his normal duties, from about 2014 the Claimant and other OSOs also undertook what is referred to as ‘snow and ice’ work. This involved additional, voluntary, paid work undertaken during ‘the winter months’ (which in 2020/2021 were 02 November 2020 to 22 March 2021). The work consisted of two teams of workers who would, when necessary, arrive at the prison early in the morning, to apply salt to pathways, roads and parking areas in and around the area of the prison and clear the accessible areas of snow and ice. During the winter months, each employee who had agreed to undertake the work, was placed on a rota, which determined when they would be on call to carry out this work. 2 of 37[7]The general practice was that the Orderly Officer would assess the weather conditions at around 04.30am. If conditions were such that snow & ice work was required, someone would then call those on the rota, to allow enough time for them to reach the prison before the main staff arrived. The employees would then make their way to the prison and clear the areas. However, if the weather was consistently bad and if more bad weather was forecast, rather than leave it to 04.30 am to make the call, the Orderly Officer would tell the snow & ice team in the evening to come in the following day at 04.30am. Thus, in consistently bad and forecast bad weather, the call-out instruction was often given the night before. The Claimant was in a ‘snow and ice’ team of three, along with Lez Mielnik and Mick Wingfield. Payment for snow & ice work[8]When on the rota, the team remained ‘on call’ for which they were paid an on-call allowance of £105 a week. It was common ground in these proceedings that this allowance was paid for the inconvenience of being on call. In addition to this allowance, if an employee was in fact called out, he was paid an additional payment, namely a minimum payment of 4 hours’ work at the rate of time and a half (equivalent to 6 hours at the normal rate). That was the case even if snow & ice work was performed only for a few minutes. Indeed, as will be seen, this was also the case if no work was done at all.[9]Each year, the teams were issued with a document called ‘Snow & Ice Procedures’. There is a copy of such a procedure in the bundle at pages 95-100. Nowhere in this, or any other, document does it set out what the rate of pay is or in what circumstances employees are entitled to be paid the minimum 4 hours payment. Time sheets[10]The Respondent required completed time sheets to be submitted by employees, which were then passed on to a manager for approval and payment. In practice, they were submitted to Jane Ker. They were then sent to Jim Lillico (or his predecessor) who would then authorise the timesheets and approve the claims for payment (page 131). 8. Lee Potts was an OSO and colleague of the Claimant. He too once undertook snow and ice work. There was a time when Mr Potts completed and organised the submission of the time sheets on behalf of the snow and ice team of which he was part, which included the Claimant. This had been the practice of Mr Potts for some years - from about 2014 until about late 2019 or early 2020. When he left the snow and ice team, the Claimant took on the responsibility of completing and submitting time sheets for him and the team. He had been shown how to complete the sheets by Mr Potts. For at least part of period when Mr Potts had been submitting the time sheets, Julie Patrick had been Head of FM. As far as the Claimant understood things, she was fully aware that Mr Potts completed and 3 of 37 submitted time sheets on behalf of the team. Indeed, the Claimant understood and believed that she had instructed Mr Potts to do this. Once Mr Potts completed the necessary paperwork on behalf of the team, it was submitted, via Jane Ker, to management for payment approval. 9. The team had been submitting time sheets for snow & ice work on that basis since they first started doing that work in 2014. When, the Claimant agreed to take over the task, he was shown and followed the same practice as Mr Potts because that was, as he genuinely understood matters, the practice. Aborted call outs 10. Sometimes a call out would be aborted or cancelled, by which to say each member of the team, having been called out, would subsequently receive a telephone call to say that, conditions having been reassessed, he was no longer needed to undertake the work. This was a central issue in these proceedings and it formed the background to a disciplinary charge against the Claimant during his employment, which along with another disciplinary charge, resulted in his dismissal. 13 – 14 February 2021[11]On the evening of 13 February 2021, the Claimant, Lez Mielnik and Mick Wingfield were instructed by Simon Bryson, to come in the following morning as it looked like the snow & ice team would be needed. That team had been out clearing ice and snow all week and the forecast had been for icy conditions again on 14 February 2021. Therefore, on the evening of 13 February, in anticipation of the need to clear paths and roads the following morning, they were ‘called out’ to attend the prison at 04.30 on 14 February.[12]The Claimant rose early on the 14th and left home to go to the prison hoping to arrive at about 04.30. On his way, he received a call from the “Comms Operator” (Maggie Aleksandrowicz) to say that the call out had been cancelled. The Claimant did not communicate this to the other two, assuming that someone from Comms would contact them. He returned home for a while before returning to prison later that morning to start his normal duties at 07.30am.[13]On 14 February 2021, at 13.43, the Claimant emailed Jane Ker attaching a time sheet for the 08 to 14 February 2021 [page 143]. As had been his practice and that of Mr Potts before him, he also completed and submitted time sheets for Mr Wingfield and Mr Mielnik [pages 142 and 144]. The Claimant had filled those forms in incorrectly (in a minor way), in that he entered the number of ‘hours’ in the ‘days’ column, whereas they should have been entered in the ‘hours decimal’ column. A corrected version of the Claimant’s time sheet is at page 138. It had been corrected by Jane Ker, without question. In the timesheets, the Claimant had claimed for 4 hours’ work snow & ice work on 14 February 2021. The time sheets were then processed, approved and paid without question. 4 of 37[14]This was not the first time that the Claimant had claimed for and had been paid for an aborted call in circumstances where he had been called out, only for the call to be cancelled before he arrived at work. Indeed, he had in the past claimed for and had been paid for call outs which had been cancelled before he left his home in the morning. The snow & ice procedure document says nothing about entitlement to the minimum 4 hours’ payment in the event of an aborted call-out. Indeed, the document which the Respondent referred to as the reviewed policy (such review coming out of the investigation into the Claimant’s conduct) at pages 234-235 does not touch on entitlement to payment for aborted call outs. It states the amount of the allowance of £105 and a ‘bonus payment’ of £60 for activities undertaken between the hours of 04.30 and 07.30 but it says nothing about aborted calls.[15]I accept the evidence of the Claimant that the practice had been that employees who were called out but who were subsequently told that the call-out was cancelled were paid the minimum 4 hours payment, whether they did any work or not or whether, in fact, they had arrived at the prison. Mr Martin, in his evidence, said that if an employee had been called out and presented himself at the prison only to be told immediately that the call-out was cancelled, as conditions had been improved, he would be paid the minimum 4 hours because he had presented himself for work. Therefore, even from the Respondent’s perspective and understanding, that minimum payment was not dependent on the employee doing any work pursuant to a call out. However, Mr Martin said in evidence that the employee would not be paid the minimum 4 hours if the employee received confirmation of the call-out before the employee arrived at the prison – even if the employee was told of the cancellation after he had set off from work and was only 1 or 2 minutes away from the prison. He distinguished the two situations on the basis that ‘a line had to be drawn somewhere’. Nowhere in any of the policies or any other document is this distinction set out and no example of it in practice was given by the Respondent. The Respondent adduced no evidence that the ‘line’ had ever been communicated to the Claimant or to any other employee carrying out snow & ice work – indeed the Respondent did not even suggest in these proceedings that it had communicated this to employees. I am satisfied, and so find, that if there ever was such a line, the Claimant was never made aware of it. The Claimant genuinely believed he was entitled to a minimum payment of 4 hours in respect of the cancelled call-out on 14 February 2021. Lesley Russell’s investigation: snow & ice call out[16]On 01 April 2021, the Claimant received an email from Lesley Russell, Business Hub Manager, saying that she had been commissioned to investigate the details of a recent overtime claim made by the Claimant. He was directed to attend a meeting on 08 April 2021 at 13.30 to discuss the matter. No other details were provided at that stage [page 139]. 5 of 37[17]The Claimant attended the meeting on 08 April 2021 with Lesley Russell. The brief notes of that interview are at [pages 148-149]. He was asked about being contacted on Saturday night to attend for snow and ice work on Sunday 14th February. He explained that after he had set off from home, he received a call to stand down at about 04.30-ish. He was scheduled to work that Sunday anyway, starting at 07.30am but once he received the cancellation call, he returned home, then came back in for his 07.30 start. The Claimant explained to Ms Russell that his understanding on payment was that if they get a call-out or are instructed in advance to go out, that is a call out and they get paid for the 4 hours whatever the case, that is, even if subsequently cancelled.[18]There is a Guidance Document prepared by HR s [pages 73-84]. It is designed to ‘assist managers to make decisions on issues raised under the company’s disciplinary and performance capability policy’. The document (which has no contractual force) encourages the investigating manager to ensure ‘that an investigation is thorough, that all of the necessary questions have been asked, and information has been gathered and followed up on is essential’ [page 73, paragraph 2.1]. The manager is also encouraged: ‘when preparing notes or a statement, should the investigating manager believe that there is some ambiguity in the account, the interviewee should be asked to clarify. The investigating manager/note taker should avoid applying their own interpretation to a witness’s evidence’ [page 76, paragraph 2.3]. Under the heading ‘Case Summary’ it states: ‘this is the most important section in the report, since its content will clarify if there is a case to answer which will be considered in a Disciplinary Hearing. This should be the largest section of the report…. In this section the Investigator should describe what he/she found, including both evidence for and against the allegations…..’ [page 82].[19]Ms Russell prepared an Investigation Report [pages 129 – 134] the date of completion of which is given as 06 May 2021. In addition to the Claimant, she interviewed Lez Mielnik, Michael Wingfield, Simon Bryson, Maggie Aleksandrowicz and David Gray. She spoke to Jane Kerr who confirmed that she receives the time sheets from the Claimant. Ms Russell did not interview Jim Lillico, who was identified as the person who approved payment of on call work following submission of the time sheets. Therefore, she never asked Mr Lillico whether he was aware that the call out of 14 February 2021 had been cancelled and whether he had, in that knowledge, approved payment of the minimum 4 hours for the snow & ice team.[20]In the case summary section of her report [page 133] Ms Russell recorded a finding that the team was probably told on the night of 13 February 2021 to come in the next morning and that the team was probably called on the morning of 14 February 2021 cancelling the call-out as the weather had improved and gritting was not necessary. She added this: “it is questionable whether the team should or should not be entitled to a ‘call out’ fee as they had not actually reached the establishment but had, possibly been on their way and started their journey to 6 of 37 the prison. It is quite clear that one member of the team completes claim forms all. It is also clear that there is no check made of a claim by anyone.”[21]Ms Russell set out what she understood to be the payment process for snow & ice staff, information she had obtained from Rob Nixon [page 131]. Points 4 and 5 are that ‘all claim forms go to Jane Ker who collates the claims’ and ‘Jim Lillico authorises the claims’. Ms Russell also highlighted concerns “regarding the management and accountability of the payment process including inadequate management checks, if any”.[22]Ms Russell made some recommendations and identified the allegation as: “the members of the S&I staff interviewed, fraudulently claimed monies for being called out and for work they did not do” [page 134]. The scaffolding poles[23]In an area just outside the prison, by the main gates, were some scaffolding poles which were not in use. This area was described in these proceedings as a ‘compound’ and was referred to as the ‘farms and gardens’ area. Nobody knew – either at the time of these events or at the time of this hearing - who this scaffolding belonged to. No-one could say how long the scaffolding had been lying there.[24]The Claimant has a sister, Helen, who also worked for the Respondent and was based at the prison. She and her husband were working on an extension to their house. In the days leading up to 27 February 2021, the Claimant asked Keith Borthwick if he could borrow some scaffolding poles for them to use while working on the extension. Mr Borthwick was a manager in charge of industries and workshops. Mr Borthwick told the Claimant that he could not give him permission as they were not his, and that he should ask Jim Lillico. The Claimant then spoke to Mr Lillico and asked if he could borrow the poles. Whether Mr Lillico gave the Claimant permission or not was a controversial issue both in these proceedings and at the disciplinary hearing following which the Claimant was dismissed. The Claimant gave evidence that Mr Lillico said that he could take them. Having considered the matter carefully, I find that Mr Lillico did tell the Claimant he could take the poles. I shall return to this in my conclusions on the wrongful dismissal claim.[25]On 27 February 2021, the Claimant attended the prison in a van/truck to collect the scaffolding poles. Shortly before arriving he called through to the comms room, which is adjacent to the gate house, and asked to speak to Mr Mielnik. He told him that he was on his way and would be there in about 10 minutes or so. As set out above, the scaffolding was in an area (‘farms and gardens’) just outside the prison, and which Ms Thompson described in evidence as a bit of a ‘dumping ground’. Iain Mushet’s investigation: - scaffolding 7 of 37[26]Mr Mushet was commissioned to investigate the Claimant regarding an allegation of theft on 23 March 2021 [page 102]. The terms of reference required him to complete his inquiries by 09 April 2021. On 26 March 2021, Mr Mushet emailed Stephen Dargue (Head of Business Development) [page 128]. Mr Dargue responded within a few minutes [page 127] explaining his understanding of the process to follow if someone wanted to remove an asset. At the end of the email he added: “If you ask me whether this is written down, I wouldn’t be able to say for sure. It is more an HMP policy that we modified when Sodexo took over the running of the prison.”[27]On 11 May 2021, the Claimant received a call from Mr Iain Mushet (Network and Systems Manager) asking him to come to an interview. Mr Mushet did not say what the meeting was about. He had not previously emailed or called the Claimant to say that he was suspected of stealing scaffolding poles or of any act of misconduct. When the Claimant then met with Mr Mushet he was asked whether he knew why he had been asked to attend, to which the Claimant answered no. Mr Mushet did not say at that point that there was an allegation against the Claimant that he had stolen some scaffolding. He simply asked the Claimant whether he had asked Mr Lillico about some scaffolding. The Claimant said that he had, from ‘farms and gardens’, that he had collected it on 27 February 2021 and that it was for his brother’s extension. Mr Mushet closed the meeting by saying to the Claimant “well, this is going to be an easy one”.[28]Mr Mushet made a note of his brief meeting with the Claimant [pages 119- 120]. The Claimant was not asked to sign the note of the meeting and Mr Mushet did not sign it either. It says as follows: “Did you ask Jim Lillico about some scaffolding in farms and gardens. Yes – it was to borrow. What was the response. Yes take it away – to borrow. Was it collected on 27th Feb? yes possible – for brother’s extension. Was it returned? Still in use”[29]The discussion Mr Mushet had with the Claimant on 11 May 2021 was extremely brief. The above italicised note is the entirety of the conversation (save for the introductory and closing remarks referred to in paragraph 27 above). He never went back to the Claimant to ask any further questions. There was no explanation given as to why it was not until 11 May 2021 that the Claimant was interviewed about the matter. There was no explanation as to why the Claimant was not informed of the allegation of theft prior to – or even at – the meeting on 11 May 2021.[30]Mr Mushet also met with Jim Lillico on 11 May 2021. Mr Mushet made a note of that meeting [pages 122-124]. It was signed by Mr Lillico as accurate. Mr Mushet signed only the first page. The note of interview reads as follows: 8 of 37 “Did John ask you about some scaffolding? He did and I said I want nothing to do with that. Why did you want nothing to do with it? It does not belong to us – we don’t keep it. Probably belonged to a contractor. Did JC ask if he could borrow it. There were no further comments. Did you give permission for John to take the scaffolding? No.[31]The only thing Mr Lillico is recorded by Mr Mushet as having said when the Claimant asked about the scaffolding is ‘I want nothing to do with that’. The question was then asked: ‘did you give permission’ and his answer is recorded as ‘no’.[32]Mr Mushet met with other employees: Steve Johnson, Victoria Bruce, Malgorzata Alexandrowicz, Helen Cotterill and Les Mielnik. All bar Victoria Bruce were interviewed after the date given in the terms of reference for completion of the enquiries.[33]Ms Bruce was interviewed on 08 April 2021 [pages 114-117]. She was present in the comms room on 27 February. She was asked, among other things ‘did you witness any [sic] suspicious that morning’? She said she ‘saw a vehicle (flatbed) leaving the area of Farms & Gardens at approx. 11:30, perhaps earlier’.[34]Maggie Alexandrowicz, also present in the comms room, was interviewed on 21 April 2021 [page 118]. She and Mr Mushet signed the note as accurate. She was asked two questions:(1) Do you recall any phone calls for LM on the 27th Feb? Answer: ‘no’(2) Do you recall LM moving cameras as a result of the phone calls he took? Answer: ‘no’[35]Mr Johnson was also present in the comms room on 27 February 2021. Mr Mushet interviewed him on 13 April 2021 [pages 111-113]. Mr Johnson signed the note on 21 April 2021 as an accurate record of what was said. Mr Mushet signed only the first page. Mr Johnson was asked three questions:• Can you clarify why you thought it was JC on the phone? Answer: ‘I’ve never known anyone else phone for LM (Les Mielnik)• Why did you think this was going to be a dishonest act? Answer: ‘The act of moving cameras is unusual for an OSO away from their resting position following an external phone call without management approval’• Can you tell me any more about VB (Victoria Bruce) actions? Answer: ‘No apart from VB mentioned she spoke to SJ about the incident’. 9 of 37[36]From those three questions the natural inference to draw is that Mr Mushet had some existing information from Mr Johnson. Quite what that information was is unclear and is unexplained. I infer that it was what is called by the Respondent an ‘anti-corruption Intelligence Report’ (on which see below).[37]In addition to the above, Mr Mushet was at some point provided with a further typed, unsigned and undated statement from Mr Johnson [pages 109-110]. The Respondent was unable to say how or when that statement came to be provided. At the bottom of page 109 Mr Johnson says: “From the telephone conversation between Mr Melnick and the individual I believed to be Mr Cotterill I immediately thought that some dishonest act or another would be taking place within the Farm’s and Garden’s and that Mr Cotterill was intent on stealing property either belonging to H.M. Prison Service of Sodexo and that no one in authority who has access to that area, in particular Mr Jim Lillico works manager would have consented to the removal of any property within that yard. This belief of mine was further reinforced by the following: these actions took place on a Saturday when there would be very little chance of discovery by anyone in authority, the telephone direct to the Comms Room asking for Mr Melnick in particular and the actions of Mr Melnick in diverting the security camera’s away from Farm’s and Garden’s, suggest that this was not a spur of the moment action but had been devised in advance. I then returned to the gate”[38]As stated above, the timing of the statement is unexplained. The inference I draw from the reference to Mr Lillico is that Mr Johnson had, by the time he expressed this opinion, been made aware that there was an issue as to whether Mr Lillico had given the Claimant permission. In the last paragraph of the statement, Mr Johnson refers to having submitted an anti-corruption Intelligence Report, which was not in the bundle, nor was it provided to the Claimant. It is highly unlikely that Mr Mushet had access to the statement at page 109 when he interviewed Mr Lillico on 13 April 2021, because in that document he gives answers to the very three questions in greater detail than the answers he gave on 13 April 2021. Had Mr Mushet read the statement at page 109-110, there would have been no need to ask those three questions, which were the only questions Mr Mushet asked. I infer, therefore, that Mr Mushet had the Intelligence Report before him when he interviewed Mr Johnson on 13 April 2021, that the three questions he asked of Mr Johnson arose out of whatever was in that report; that sometime between 13 April 2021 and the preparation of the investigation report Mr Johnson provided Mr Mushet with the further statement at page 109-110, and that he did so after speaking to Rob Nixon, who had commissioned the investigation against the Claimant [see page 105, third paragraph]. By that time, I infer that Mr Johnson had been made aware by someone that there was an issue as to whether Mr Lillico had given the Claimant permission. That is the most likely explanation for Mr Johnson offering up the unsolicited opinion highlighted in bold in paragraph 37 above. 10 of 37[39]Helen Cotterill (the Claimant’s sister-in-law) was interviewed on 11 May 2021 and she and Mr Mushet signed the note that day [page 121]. She was asked one question: (1) Did John Cotterill bring some scaffolding poles to your house? Answer: ‘yes’[40]Mr Mielnik was interviewed on 25 May 2021 [pages 125-126].He and Mr Mushet signed the first page of the note as accurate that day. Mr Mielnik was present in the comms room on 27 February 2021. He was asked what looks like 5 questions by Mr Mushet:(1) Do you remember the day JC picked up the scaffolding (27th Feb)? Answer: ‘yes’(2) Can you tell me about the day? Answer: ‘VB on site to hand in sick note & asked who/what the truck in Farms & Gardens was – LM explained it was JC collecting scaffolding’(3) How did you know it was JC? Answer: J’C told me in advance – I think he rang on the day’.(4) Do you remember the conversation/did he ask you to do any thing with the CCTV? Answer: ‘think he said he was coming for scaffold[41]There is then what reads like a remark made by Mr Mushet: ‘& you don’t think the CCTV was on the yard’.[42]Mr Mushet prepared an Investigation Report [pages 103-108]. He attached appendices consisting of the interview records and/or statements of employees [pages 109-128]. Confusingly, on page 103, the report is said to have been completed on 09 April 2021. However, that is not possible, given the dates of interviews.[43]On page 103, under the heading ‘Case Overview and Key Events’ is stated: “Allegations reported via CP IR of theft by OSO John Cotterill on 27/2/2021 of a number of scaffolding poles”. That is, I infer, a reference to the ‘intelligence report’ submitted by Mr Johnson. It is unclear whether that is a reference to him submitting a CP IR on 27 February 2021 or to the date of the alleged theft.[44]On page 107, under the section dealing with the interview of Mr Mielnik, Mr Mushet states: “I started by explaining to LM that JC had stated that he removed the scaffolding from site under the impression he had the relevant permission and asked LM if he recalled this day.” 11 of 37[45]Under the heading ‘Overview of facts’, one of the ‘facts discovered in the investigation’ was that: “JC believed he had permission from JL to remove the scaffolding from site” [page 107]. Another is: “there was no formal authority given (e.g. gate pass) to remove this equipment from site.” [page 108].[46]On page 108, under ‘Mitigating Circumstances’, Mr Mushet stated: “I believe the statement from Jim Lillico of ‘I want nothing to do with this’ in reference to the scaffolding could be interpreted as unclear”. Although he noted this lack of clarity, Mr Mushet did not go back to Mr Lillico to ask him to clarify things. Under the ‘case summary’ section [page 108] Mr Mushet stated: “There was no proper authority to remove assets from site so this action should not have been taken.”[47]Under the allegation section [page 108], Mr Mushet identified the allegation as being: “OSO John Cotterill removed property from site without the appropriate authority”. It was not expressly stated as theft, although in the box immediately above it, Mr Mushet stated: “if proven, the allegation of theft is considered as gross misconduct”. Disciplinary hearing[48]On 01 July 2021, the Respondent wrote to the Claimant to ask him to attend a disciplinary hearing on 06 July 2021 [pages 157-159] to be chaired by Richard Martin, Deputy Head of Residence. There were three allegations against the Claimant:(1) That he submitted an overtime claim for 14 February 2021 despite not working overtime on that date, that he received payment for this and did not question it;(2) That he submitted overtime claims for two colleagues for the same date despite neither of them working overtime;(3) That on 27 February 2021 he removed assets, namely scaffolding poles, from HMP Northumberland without the appropriate authorisation.[49]The letter went on to say that, if founded, the allegations represented a breach of Sodexo’s Rules of Conduct. It set out four extracts from the Rules of Conduct [page 157-159]. Enclosed with the letter was an information pack relating to the allegations[50]The Claimant attended the hearing on 06 July 2021. The notes are at pages 162-178 and were agreed as broadly accurate. The Claimant specifically asked during the disciplinary hearing that Mr Martin interview Lee Potts and Julia Patrick regarding the snow and ice payments practice. The reason he asked this was that the Claimant had contended from the outset, and during the disciplinary hearing itself, that he had adopted Mr Potts’ practice which he believed to be the correct practice as approved by the manager, Julie Patrick. He maintained that 12 of 37 payment was always made whether the employee attended the prison or not; that he had never been told that it was wrong and that it had always gone through management checks.[51]Mr Martin refused to speak to Mr Potts or Ms Patrick on the basis that what they had to say was irrelevant. In paragraph 22 of his witness statement, Mr Martin accepted that the Claimant had asked for this to be done and that it was not written down in the notes until the Claimant asked for it to be noted at the end of the hearing. He considered anything Lee Potts and Julie Patrick to be irrelevant because in his view it was the Claimant’s and no-one else’s responsibility to ensure that he claimed overtime correctly and that nothing Lee Potts or Julie Patrick could say could have added to that.[52]The Claimant also asked that Mr Martin interview Keith Borthwick regarding the allegation about the scaffolding [page 171]. The reason being that the Claimant said he had asked Mr Borthwick before he went to Mr Lillico. Again, Mr Martin considered that to be irrelevant because, as he put it in paragraph 23 of his witness statement, Mr Borthwick had nothing to do with the scaffolding and the Claimant ‘will have known that Mr Borthwick was not the right person to ask’.[53]At the disciplinary hearing, the Claimant also asked that Mr Martin re-interview Mr Mielnik. The circumstances in which he came to ask for this to happen call for some careful attention to the notes of the disciplinary hearing. On page 168, Mr Martin begins by summarising the points from the investigation. Towards the bottom of page 169, Mr Martin refers to interviewing Mr Lillico. However, Mr Martin did not, in fact, interview anyone, as he confirmed in his oral evidence. Brief as they were, all the interviews were by Mr Mushet (and in relation to the call out allegation, by Ms Russell). In any event, Mr Martin goes on to refer to the interview of Mr Mielnik, where he says this: “Les was interviewed prior. Les stated he was not aware of verbal authority by JL.”[54]That is fundamentally not right. Mr Mielnik did not say he was not aware of verbal authority by Mr Lillico. As Mr Martin accepted in cross examination, nobody asked Mr Mielnik about the issue of permission. It is clear from Mr Mushet’s investigation report that Mr Mielnik had been told at the outset that the Claimant said he took the scaffolding poles under the impression that he had the relevant permission. That was the premise on which Mr Mielnik was interviewed. He certainly did not say he ‘was not aware of verbal authority’. That was a fundamental mis-reading of the situation by Mr Martin.[55]When the Claimant was told by Mr Martin that Mr Mielnik said he was not aware of verbal authority by Mr Lillico, he responded in the way set out on page 170: “JC: Did he get asked questions. You will have to speak to Les. I believe Les would tell the truth. Les was sat next me when JL was asked.” 13 of 37[56]Mr Martin refused to re-interview Mr Mielnik. He gave his reasons in paragraph 20 of his witness statement. Essentially, it was because he did not accept the Claimant’s assertion. He reasoned that if Mr Mielnik had been there and witnessed the exchange, in Mr Martin’s view, he would have mentioned it during the investigation, given his friendship with the Claimant. Mr Martin was of the view that this was a ‘new assertion’, which was undermined by the ‘possibility’ of Mr Mielnik having moved the CCTV and Mr Martin’s assessment of Mr Lillico’s character. In his oral evidence to the Tribunal, Mr Martin accepted that Mr Mielnik had not been asked about permission having been given. He considered whether to put this to Mr Mielnik but decided not to. Three factors operated on his mind for deciding not to do so:(1) his knowledge of Mr Lillico, who had said he had not given permission;(2) the fact that the matter had been freshly raised at the disciplinary hearing and(3) even if he had interviewed Mr Mielnik and, were he to confirm that he had heard Mr Lillico give permission, Mr Martin, he said, would have attached little weight to such evidence.[57]As to the matter being raised late in the day, it was not, in fact, raised late in the day. The first time the allegation of taking the scaffolding without permission had been put to the Claimant was in the letter of 01 July 2021 inviting him to a disciplinary hearing on 06 July 2021. It is right that ,at the disciplinary hearing, the Claimant raised the issue of Mr Mielnik being present but that was in response to Mr Martin’s statement that Mr Mielnik said he was unaware of any verbal authority from Mr Lillico. As to the other two factors, Mr Martin pre-determined what he would make of anything Mr Mielnik might say. He concluded that he had no reason to doubt Mr Lillico, a man who was ‘trustworthy beyond reproach’.[58]At the end of the hearing, Mr Martin adjourned. He returned ten minutes later to inform the Claimant that all three charges were upheld and that he was dismissed with immediate effect for gross misconduct. By, the time he adjourned he had already concluded that allegations against the Claimant should be upheld (paragraph 26 of his witness statement).[59]Mr Martin noted his findings on pages 173 – 174 as follows: “Finding 1 You submitted a claim for you and two others for work you didn’t carry out and not entitled to in line with the guidance provided by Jim Lillico and snow and ice policy as per the investigation report. 2nd You took scaffolding from site without authority and that’s based on having no written authority of said items. Les had the opportunity on interview to say he collaborated [sic] of you version of events with Jim Lillico but he did not. Jim clearly stated on interview that he did not give permission. 3) 14 of 37 Suspicion of CCTV coverage of the area of where the scaffolding was kept to ensure there was no coverage.”[60]On the matter of sanction, Mr Martin said: “the two matters are gross misconduct therefore the appropriate sanction is to be dismissed for both” [page 176].[61]At the end of the disciplinary hearing, the Claimant was asked to read and sign the notes of the disciplinary hearing. On reading them he asked for amendments to be noted that he had asked for Lee Potts and Julie Patrick, Keith Borwick and Lez Mielnik to be interviewed [pages 177-178].[62]Mr Martin completed a document called ‘disciplinary hearing – outcome and rationale’ for internal purposes [page 231-232]. In relation to allegation 1, Mr Martin does not set out under ‘your rationale for this decision’ that he concluded the Claimant to be dishonest. He says: ‘The fundamentals of the summary were agreed by John. His defence was his reliance on another having provided him with correct advice. If the defence is to be believed John failed to check this was indeed the correct approach and is therefore irresponsible in his actions and failed to act diligently.’ He does not say that he did not believe the defence that the Claimant believed he was entitled to the payment – although in oral evidence to the tribunal, Mr Martin said that he believed the Claimant had acted dishonestly.[63]On 16 July 2021, Mr Martin wrote to the Claimant with the outcome of the disciplinary hearing, which was that the allegations were upheld and that he was summarily dismissed [pages 179-181]. In relation to allegation 1 (submission of the overtime claim for 14 February 2021) two of the points Mr Martin says he took into account were:(1) “You believed you were entitled to the payment despite not working any hours, you did not question this with a member of management prior to submitting the request”(2) “The managers I have interviewed as part of my investigations explain the process for overtime is that the clock starts upon arrival at the prison not the moment you get called in”[64]As regards allegation 2 (completion of overtime claims for the two colleagues) one of the things Mr Martin took into account was: (1) “I have been unable to substantiate what instructions you were given by a previous colleague however you failed to check the correct approach and act diligently and I therefore find you actions in this instance to be irresponsible”[65]As regards allegation 3 (removal of scaffolding poles without the appropriate authorisation), two of the things Mr Martin took into account were: 15 of 37(1) “You state that Jim Lillico provided you with verbal authority to take the scaffolding however this is denied by Jim and I have been unable to find any evidence to substantiate this claim”(2) “You failed to obtain written approval for the equipment to be removed from site, which you confirmed you had not done during the disciplinary hearing”[66]Although in his witness statement at paragraph 27, Mr Martin says that he took into account the fact that the Claimant’s good record and length of service (17 years) there is no sign of him having done so in the notes of the disciplinary hearing, in disciplinary letter or in the document at pages 231-232. On page 174, Mr Martin refers to moving on to ‘mitigation’. All that he refers to is the absence of live warnings on his record. I am satisfied, and so find, that Mr Martin did not in fact have regard to these matters at the time.[67]Mr Mielnik was given a FWW for what the Respondent considered to be a fraudulent overtime claim. Further, although Mr Martin concluded that Mr Mielnik had knowingly facilitated theft of the scaffolding, no action at all was taken against Mr Mielnik in relation to that. Ms Thompson also told the Tribunal that she believed that Mr Mielnik moved CCTV cameras knowingly to enable the Claimant to steal scaffolding out of sight of the CCTV. The Respondent did not mention any disciplinary sanction against Mr Wingfield. I infer from the fact that the Respondent specifically referenced the sanction against Mr Mielnik yet said nothing about Mr Wingfield, that no sanction was administered in respect of the fraudulent overtime claim.[68]The Claimant appealed Mr Martin’s decision. The appeal was heard by Ingrid Thompson, Head of Security and Safety on 03 September 2021.[69]The notes of the appeal hearing were at pages 199 – 207. At the outset, the Claimant asked to submit a statement, which he had obtained the day before (on 02 September 2021). It was a statement from Mr Mielnik [pages 222-223]. He also explained to Ms Thompson that he asked Mr Martin to interview several witnesses but that Mr Martin had said there was no point [page 201]. Ms Thompson said that she would not discuss points based on opinion and asked what new evidence he had. He gave her Mr Mielnik’s statement.[70]In Mr Mielnik’s statement he said that:• He had never once submitted a time sheet for snow and ice work over a period of about 3 ½ to 4 years and this has never been questioned until now that this was not the correct procedure;• Lee Potts and Julie Patrick (FM Manager at the time) had agreed this procedure;• The Claimant followed this procedure; 16 of 37• He was a witness to the conversation with the Claimant and Mr Lillico; that he was working alongside the Claimant in the communication room when Mr Lillico entered the room with some contractors. After the contractors left, the Claimant asked permission to borrow the scaffolding. He said that Mr Lillico said ‘yes, just take it’.• On the day he collected the scaffolding, the Claimant called him in advance by way of a courtesy call to advise the description of the vehicle;[71]Ms Thompson interviewed Mr Mielnik on 22 October 2021 [page 220-221]. She asked Mr Mielnik why he had not mentioned the conversation when initially interviewed. He said that he did but he did not realise he could alter what was recorded by Mr Mushet. She asked him whether he can really say that Mr Lillico gave the Claimant permission to take the scaffolding. He answered yes.[72]On 30 October 2021, Ms Thompson emailed Mr Mushet regarding Mr Mielnik’s statement [page 197]. She says as follows: “Les claims that he stated during interview that he overheard Jim Lillico tell John Cotterill he could take the scaffolding off the premises, however you did not write it on the minutes of the meeting. Les signed to say that the minutes of the interview were accurate and a true reflection at the time. Please can you confirm if Les stated this during his interview or not?”[73]Mr Mushet replied on 01 November 2021: ‘Hi Ingrid. This was not stated in the interview.’[74]Ms Thompson emailed Mr Lillico on 04 November 2021 [page 198]. She did not interview him, nor did she show him Mr Mielnik’s statement. Mr Lillico’s reply was as before, that all he said was ‘I did not want anything to do with that’. He said he could not recall if Mr Mielnik was present at the time.[75]It was over 3 months before the Claimant heard the outcome of his appeal. Ms Thompson wrote on 15 December 2021 dismissing it [page 228-230]. The reason for the delay was said to be the absence of a key witness, namely Mr Mielnik. However, Ms Thompson had interviewed him on 22 October 2021, yet it still took another 7 weeks before she wrote rejecting the appeal for which there was no explanation.[76]Ms Thompson agreed with Mr Martin’s assessment that there was no evidence to suggest a custom and practice of claiming four hours’ work when no work had actually been done (paragraph 13 of her witness statement). Not only was that wrong (Mr Martin confirmed that payment would be made if no work had been done but where the employee had presented himself at the prison). Ms Thompson took no steps to investigate the alleged custom and practice, even though she would have known from her careful reading of the papers that it was a key issue. She formed the view on the basis that she had never heard of people 17 of 37 claiming overtime for work not completed. That may be the case, but there was no suggestion by the Claimant that this practice of being paid for aborted calls was widespread or outside the snow & ice work. Legal principles Unfair dismissal
Legal principles
[77]It is for the employer to show the principal reason for dismissal and that it is a reason falling within section 98(2) or that it is for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. The reference to the ‘reason’ or ‘principal reason’ in section 98(1)(a) and s98(4) is not a reference to the category of reasons in section 98(2)(a)-(d) or for that matter in section 98(1)(b). It is a reference to the actual reason for dismissal (Robinson v Combat Stress UKEAT/0310/14 unreported). The categorisation of that reason (i.e. within which of subsection 98(2)(a)-(d) it falls) is a matter of legal analysis: Wilson v Post Office [2000] IRLR 834, CA.[78]A reason for dismissal ‘is the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee: Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA. In a more recent analysis in Croydon Health Services NHS Trust v Beatt [2017] ICR 1240, CA, Underhill LJ said that the ‘reason’ for dismissal connotes the factor or factors operating on the mind of the decision maker which causes them to take the decision. It is a case of considering the decision-maker’s motivation.[79]An employer may have multiple reasons for dismissing an employee. In Robinson v Combat Stress Langstaff P said at paragraphs 20 and 21: “where an employer has a number of reasons which together form a composite reason for dismissal, the tribunal’s task is to have regard to the whole of those reasons in assessing fairness. Where dismissal is for a number of events which have taken place separately, each of which is to the discredit of the employee in the eyes of the employer, then to ask if that dismissal would have occurred if only some of those incidents had been established to the employer's satisfaction, rather than all involves close evaluation of the employer's reasoning. Was it actually that, once satisfied of one event, the second merely leant emphasis to what had already been decided? There may be many situations in which, having regard to the whole of the reason the employer actually had for dismissal, it is nonetheless fair to dismiss. All must depend on the employer's evidence and the Tribunal's approach to it. But that approach must be to ask first what the reason was for the dismissal, and to deal with whether the employer acted reasonably or unreasonably by having regard to that reason: that is, the totality of the reason which the employer gives.'' 18 of 37[80]Where the reason is a composite of a number of conclusions about a number of different events the tribunal must examine all of the employer’s reasoning as that was the actual reason for its dismissal.[81]In a ‘misconduct’ dismissal, the employer must also show that the principal reason for dismissal relates to the conduct of the employee. If it is established that the reason for dismissal relates to conduct the next question is whether the employer has acted reasonably in treating that reason as a sufficient reason for dismissal – s98(4) ERA 1996. The burden here is, of course, neutral. It is not for the employer to prove that it acted reasonably in this regard. The Tribunal must not put itself in the position of the employer. The Tribunal must confine its consideration of the facts to those found by the employer at the time of dismissal and not its own findings of fact regarding the employee’s conduct.[82]In Ivey v Genting Casinos (UK) Ltd (t/a Crockfords Club) 2018 AC 391, the Supreme Court held that where a question arises as to whether conduct is in fact dishonest, the fact-finding tribunal must first ascertain the actual state of the individual’s knowledge or belief as to the facts. The question whether the conduct was honest or dishonest should then be determined by applying the objective standards of ordinary decent people.[83]Section 98(4) poses a single question namely whether the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the Claimant. It requires the Tribunal to apply an objective standard to the reasonableness of the investigation, the procedure adopted and the decision itself. However, they are not separate questions – they all feed into the single question under section 98(4). Whilst an unfair dismissal case will often require a tribunal to consider what are referred to as ‘substantive’ and ‘procedural’ fairness it is important to recognise that the tribunal is not answering whether there has been ‘substantive’ or ‘procedural’ fairness as separate questions.[84]The approach to be taken when considering s98(4) is the well-known band of reasonable responses, summarised by the EAT in Iceland v Frozen Foods Ltd v Jones [1983] I.C.R. 17. The Tribunal must take as the starting point the words of s98(4). It must determine whether in the particular circumstances the decision to dismiss was within the band of reasonable responses which a reasonable employer might have adopted. In assessing the reasonableness of the response it must do so by reference to the objective standard of the hypothetical reasonable employer (Tayeh v Barchester Healthcare Ltd [2013] IRLR 387, CA @ para 49). The Tribunal must not substitute its own view as to what was the right course of action.[85]In misconduct cases, the approach which a Tribunal takes is guided by the well known decision of British Home Stores v Burchell [1978] IRLR 379, EAT. Once the employer has shown a valid reason for dismissal the Tribunal there are three questions: 19 of 37(i) Did the employer carry out a reasonable investigation?(ii) Did the employer believe that the employee was guilty of the conduct complained of?(iii) Did the employer have reasonable grounds for that belief?[86]In gross misconduct unfair dismissal cases, in determining the question of fairness, it is unnecessary for the Tribunal to embark on any analysis of whether the conduct for which the employee was dismissed amounts to gross misconduct. In Hope v British Medical Association [2022] IRLR 206, the EAT held that whether dismissal by reason of conduct was fair or unfair within section 98(4) ERA depended not on the label or characterisation of the conduct as gross misconduct. Determination of the reasonableness of the decision involved the four-stage analysis summarised in JJ Food Service Ltd v Kefil [2013] IRLR 850:(1) The employer’s genuine belief in the misconduct;(2) The employer reaching that belief on reasonable grounds;(3) The employer conducting a reasonable investigation;(4) Whether dismissal was within the range of reasonable responses; Fair procedures[87]A dismissal may be unfair because the employer has failed to follow a fair procedure. In considering whether an employer adopted a fair procedure, the range of reasonable responses test applies: Sainsbury plc v Hitt [2003] I.C.R. 111, CA. The fairness of a process which results in dismissal must be assessed overall.[88]The tribunal’s task under s.98(4) is to assess the fairness of the disciplinary process as a whole. Both the original disciplinary hearing and decision and the appeal hearing and decision are elements in the overall process of terminating the contract of employment. Where procedural deficiencies occur at an early stage, the tribunal should examine the subsequent appeal hearing, particularly its procedural fairness and thoroughness, the open-mindedness of the decisionmaker and its overall fairness: Taylor v OCS Group Ltd [2006] 1602 I.C.R. At the end of the day, the employment tribunal must consider whether there has been a fair result, reached by fair process. That assessment will depend on the facts of the case. Polkey[89]What is known as ‘the Polkey principle’ (Polkey v AD Dayton Services [1988] I.C.R. 142,HL) is an example of the application of section 123(1). Under this section the amount of the compensatory award shall be such amount as the 20 of 37 tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. A tribunal may reduce the compensatory award where the unfairly dismissed employee could have been dismissed fairly at a later stage or if a proper and fair procedure had been followed. Thus the ‘Polkey’ exercise is predictive in the sense that the Tribunal should consider whether the particular employer could have dismissed fairly and if so the chances whether it would have done so. The tribunal is not deciding the matter on balance. It is not to ask what it would have done if it were the employer. It is assessing the chances of what the actual employer would have done: Hill v Governing Body of Great Tey Primary School [2013] I.C.R. 691, EAT.[90]Whilst the Tribunal will undertake the exercise based on an evaluation of the evidence before it, the exercise almost inevitably involves a consideration of uncertainties and an element of speculation. The principles are most helpfully summarised in the judgment of Elias J (as he was) in Software 2000 Ltd v Andrews [2007] I.C.R. 825, EAT (paragraphs 53 and 54). Contributory conduct[91]If a dismissal is found to be unfair, under section 123(6) ERA where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it must reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding even in cases where the parties do not raise it as an issue (Swallow Security Services Ltd v Millicent [2009] ALL ER (D) 299, EAT). The relevant conduct must be culpable or blameworthy and (for the purposes of considering a reduction of the compensatory award) must have actually caused or contributed to the dismissal: Nelson v BBC (No2) [1980] I.C.R. 110, CA. The conduct need not be a breach of contract, or illegal conduct. It may be conduct that was ‘perverse or foolish’ or ‘bloody-minded’ or merely unreasonable in all the circumstances. Langstaff J offered tribunals some guidance in the case of Steen v ASP Packaging [2014] I.C.R. 56, EAT, namely that the following questions should be asked:(1) what was the conduct in question?(2) was it blameworthy?(3) did it cause or contribute to the dismissal? (for the purposes of the compensatory award)(4) to what extent should the award be reduced?[92]There is an equivalent provision for reduction of the basic award, section 122(2) which states that ‘where the tribunal considers that any conduct of the complainant before the dismissal…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’. The tribunal has a wider discretion to reduce the basic award on grounds of any conduct of the employee prior to dismissal. It is not limited to conduct which has caused or contributed to the dismissal. 21 of 37[93]Unlike the position under section 98(4) ERA where the Tribunal must confine its consideration of the facts to those found by the employer at the time of the dismissal, the position is different when the Tribunal comes to consider whether, and if so to what extent, the employee might be said to have contributed to the dismissal. In this regard, the Tribunal is bound to come to its own view on the evidence before it. Decisions on contributory fault are for the Tribunal to make, if a decision is held to be unfair. It is the claimant’s conduct that is in issue and not that of any others. The conduct must be established by the evidence. Wrongful dismissal – breach of contract[94]If an employee is dismissed with no notice or in adequate notice in circumstances which do not entitle the employer to dismiss summarily, this will amount to a wrongful dismissal and the employee will be entitled to claim damages in respect of the contractual notice.[95]An employer is entitled to terminate a contract without notice in circumstances where the employee has committed an act of gross misconduct. It is for the employer to prove on the balance of probabilities whether the employee has committed gross misconduct. Whether an employee has committed gross misconduct entitling the employer to terminate summarily is a question of fact in each case. However, the courts have considered when ‘misconduct’ might properly be described as ‘gross’: Neary v Dean of Westminster IRLR [1999] 288 (para 22). In Neary, Lord Jauncey of Tulichettle rejected a submission that gross misconduct was limited to cases of dishonesty or intentional wrongdoing. Submissions Claimant’s submissions[96]Mr Winthrop, accepted that the reason for dismissal was not in dispute or that it related to conduct, that the key issue was reasonableness and sanction. He reminded the tribunal of the appropriate legal test in Burchell and referred very briefly to the Supreme Court decision in Ivey. In short, he challenged the reasonableness and thoroughness of the investigation into the three allegations and the failures to interview key witnesses identified by the Claimant. He contended that the Respondent did not have reasonable grounds on which to sustain its belief in the conduct of the Claimant and submitted that no alternative sanction was considered and that the sanction of dismissal was outside the band of reasonable responses. He invited me to conclude that there was no scope for any Polkey reduction in this case nor for a reduction for contributory conduct. In terms of the claim of wrongful dismissal, he submitted that it is for the Respondent to establish this on evidence, which it had failed to do. Respondent’s submissions[97]Mr Wilkinson addressed me on each of the two events: the overtime and the scaffolding. In essence, he submitted the Burchell test was satisfied: there was a 22 of 37 genuine belief in the Claimant’s guilt based on reasonable grounds obtained after a reasonable investigation. He submitted that the investigation was a cogent investigation and provided the Respondent with reasonable grounds for its conclusions. In the event that I might find the dismissal to be unfair, he submitted that I had to grapple with the ‘Polkey’ issue. Mr Wilkinson’s submission was essentially that the Claimant would have been dismissed in respect of the scaffolding allegation alone, and he relied on Ms Thompson’s answer in reexamination. In any event, he said I must consider what is the appropriate reduction. Mr Wilkinson submitted that there was something that could lead to a reduction in the basic and compensatory awards under sections 122 and 123 ERA. He referred to the way in which the Claimant prepared and submitted the timesheets, on behalf of the team and without checking what the correct process was. As to the scaffolding, he submitted that, if I were to accept that the Claimant took the scaffold without permission, that would lead to a finding of contributory conduct warranting a reduction in compensation. Conclusions and reasons Reason for dismissal[98]Mr Winthrop did not dispute that the reason for dismissal was Mr Martin’s belief that the Claimant fraudulently claimed overtime (the 4 hours minimum payment) and stole some scaffolding. I conclude that Mr Martin dismissed the Claimant because he believed that the Claimant had:(1) fraudulently claimed for payment of 4 hours work for himself and two colleagues in respect of a cancelled call out on 14 February 2021, and(2) took scaffolding posts from HMP Northumberland without permission, which amounted to theft[99]In the disciplinary invite letter of 01 July 2021, although framed as three allegations, allegation 2 covered the same ground as allegation 1. The fact that the Claimant had completed and submitted time sheets on behalf of his colleagues merely lent emphasis to the allegation of the fraudulent claim. The matters in paragraph 98 above operated equally on the mind of Mr Martin and Ms Thompson and form a ‘composite reason’ (in the words of Langstaff J) and, more importantly, in the words of section 98 constitute the ‘principal reason’ for the Claimant’s dismissal. This is not a case, on my evaluation, where it can be said that the Claimant was dismissed principally for one of those reasons. It is clear from my findings that it was ‘both’ that operated equally on Mr Martin’s mind – and nothing that happened on appeal altered that.[100]Perhaps appreciating some difficulties regarding the reasonableness of the investigation into and the grounds for sustaining a genuine belief in the 23 of 37 Claimant’s misconduct under allegations 1 and 2, in re-examination Mr Wilkinson asked Ms Thompson, had there simply been allegation 3, what the outcome would have been. Ms Thompson answered that the outcome would have been dismissal. However, that was not how she approached the matter at the time. Further, she was considering an appeal against Mr Martin’s decision. He did not identify allegation 3 (the scaffolding) as the principal reason for dismissing the Claimant. Ms Thompson upheld Mr Martin’s decision without making any such distinction either. The question ‘what would, or might have been, the outcome if it had been allegation 3 on its own?’ is different to the question ‘what was the actual principal reason?’ The answer to Mr Wilkinson’s question may be relevant to remedy, but it does not alter what happened at the time.[101]Having identified the actual principal reason for dismissal, it is clear that the reason for dismissal relates to conduct and is potentially fair (which was not in dispute). Reasonableness of decision to dismiss – investigation and procedure[102]The next question is whether the employer acted reasonably in treating that reason as a sufficient reason for dismissal – s98(4) ERA 1996. I remind myself of the legal principles, and in particular those in paragraph 81 above. I must stand back and look at the overall picture to answer the single statutory question. In doing so, I conclude that the Respondent did not act reasonably in treating the reason for dismissal as a sufficient reason for dismissal. The Claimant was, therefore, unfairly dismissed. My reasoning is set out below. The investigation[103]There were two investigations carried out separately by Ms Russell (allegations 1 & 2) and Mr Mushet (allegation 3). Central to both allegations was the issue of the Claimant’s honesty. The Claimant maintained that he had acted honestly – in respect of Ms Russell’s investigation, by claiming for what he genuinely believed he was entitled to claim for, in line with previous practice and - in relation to Mr Mushet’s investigation, by taking scaffolding he believed he had permission to borrow.[104]It was the Claimant’s pleaded case that the investigation into his alleged conduct was flawed. However, neither Mr Mushet nor Ms Russell was called to give evidence on their investigations. I do not know whether they had read the HR Guidance Document produced by the Respondent [pages 73-84] (see paragraph 18 above). In Mr Mushet’s case, had he done so, he may have seen the need to clear up what might be interpreted as an unclear statement by Mr Lillico. Allegations 1 & 2[105]The following matters were clearly relevant to the allegation of fraudulently claiming overtime: 24 of 37(1) whether Mr Potts had processed snow & ice payment claims in the same way as the Claimant had done and claimed for aborted calls if on his way to work (as the Claimant maintained: page 164);(2) whether Ms Patrick (a manager) had knowledge of this practice (as the Claimant maintained: page 177);(3) Whether a manager had approved the payment of 4 hours work (as the Claimant had maintained: page 165);(4) Whether Mr Lillico was aware of the cancellation of the call-out of 14 February 2021;[106]It is not I who has identified these as central issues (albeit, applying an objective standard, they are clearly relevant). It was the Claimant – at least in relation to the first 3. The fourth follows naturally from number (3) and from the information provided to Ms Russell and to Mr Martin [page 131, point 5] that Mr Lillico was the person responsible for approving such payments. Whereas Ms Russell asked the Claimant to explain his understanding of snow & ice payments [page 149], she did not ask him where he got this understanding from. She did not interview Mr Lillico – nor did Mr Martin or Ms Thompson. Without doing so, the Respondent could not know whether Mr Lillico had approved the 4 hour payment and if so, whether he was aware that the call-out had been abandoned - thus lending support to the Claimant’s argument; or whether it was a case of Mr Lillico being in dereliction of his own duties by not authorising claims properly or carrying out appropriate checks.[107]Ms Thompson agreed with Mr Martin’s assessment that the correct payment procedures had been followed. This begs the question ‘what were the correct payment procedures?’ They were not written down anywhere. I conclude that she was referring to the process of authorisation set out in Ms Russell’s report on page 131. But, if the process as set out by Ms Russell had been correctly followed (as Mr Martin and Ms Thompson said it had) it is difficult to see how Mr Lillico could have authorised the payment for the 4 hours on 14 February – especially if he was aware the call out had been cancelled, about which he was never asked. Either the Claimant was right – that payment was not dependent on arrival at work; or Mr Lillico was to some degree negligent by not checking on the call-out. The point is that, either way, it was a very important line of inquiry to establish how the payment came to be authorised and what information that authorisation was based on. It was also an easy line of inquiry and it was not undertaken by the Respondent.[108]The findings that Mr Martin actually made were not in dispute. Those were that: 25 of 37(1) The claimant was called out to undertake snow and ice work;(2) The call was aborted after the Claimant left home but before he arrived at work;(3) The Claimant did not question with a member of management whether this belief was correct prior to submitting the request for payment;(4) The Claimant submitted claims for payment for him and his colleagues;(5) The Claimant said a predecessor had previously completed overtime forms on behalf of the snow and ice team(6) The Claimant said that he been shown how to complete the request for payment by a colleague[109]Mr Martin also found – at the time - that the Claimant believed he was entitled to payment despite not working any hours (page 179, paragraph 2, bullet point 3).[110]The unfairness to the Claimant is clear: Mr Martin having refused to investigate or interview those whom the Claimant directly said would be able to confirm a practice of being paid for aborted call-outs irrespective of attendance at work, went on to conclude that he was unable to substantiate what the Claimant said about the long-standing practice. This played a critical role in Mr Martin’s decision to uphold allegations 1 and 2 (see paragraph 64(1) above). He effectively placed a burden on the Claimant to prove this practice, whilst simultaneously declining to interview those identified by the Claimant. For the Respondent to deliberately refuse to pursue a line of inquiry about an alleged custom and practice (at the express request of the Claimant) the existence of which was, on his case, critically relevant to his defence to an allegation of fraud, and then to conclude that the Respondent was unable to substantiate such a custom and practice is not only something which is outside the range of reasonable responses of a reasonable employer but is almost Kafkaesque in its logic.[111]In paragraph 22 of his witness statement, Mr Martin – seeking to defend his position - said that he saw no relevance in speaking to Mr Potts or Ms Patrick (referred to there as Fitzpatrick) – see also my finding in paragraph 51 above. However, the allegation against the Claimant was a serious one: fraud. In terms of employment, that is high on the scale of serious allegations. A finding of fraud is inevitably going to have serious consequences for an employee, not just in terms of his own employment but in terms of securing future employment. The failures in the investigation and the refusal to interview Mr Potts and Ms Patrick as he requested deprived the Claimant of an opportunity to have supporting evidence of a critical and essential point: that he acted genuinely, without dishonest intent and not fraudulently. It is no answer to say that the Claimant could have called witnesses to the disciplinary hearing (not that this was advanced by the Respondent as an argument). He was never told he could call witnesses. This was not explained to him and nothing of that sort was set out in the letter of 01 July 2021. 26 of 37[112]Therefore, the investigation was seriously defective and unreasonable and was not such that, in my judgment, could produce reasonable grounds for sustaining a belief that the Claimant had made a fraudulent claim for payment on 14 February 2021. Further, I considered what Mr Martin had actually found and set out as his findings in the disciplinary outcome letter. From that – and in particular to his finding that the Claimant ‘believed he was entitled to payment’ – I conclude that he had no reasonable grounds for sustaining a belief that he had fraudulently claimed for such payment.[113]In the disciplinary outcome letter, under allegation 1, one of the points Mr Martin refers to was: ‘you believe you were entitled to the payment’. Nowhere does Mr Martin say that he found the Claimant to be lying about this. It is expressed in Mr Martin’s actual words as a point ‘I have taken into account’. By the time of this tribunal hearing, it is right to say that Mr Martin had expressed his views more strongly. In oral evidence he said he believed the Claimant to have been dishonest. However, that does not, on the face of things, appear consistent with what he says about ‘belief’ in the dismissal letter. Further, in his witness statement at paragraph 16 he refers to the fact that by the Claimant claiming for work that he had not actually done, this is ‘clearly fraudulent’. However, that is a stark statement which did not stand up to scrutiny (in that employees are paid for work not actually done – see paragraph 15 above). It is also, again, on the face of things, inconsistent with his own letter of dismissal, his notes of his findings and paragraph 22(a) of the Grounds of Resistance [page 36], where the Respondent pleads that Mr Martin concluded that ‘the Claimant wrongly believed that he was entitled to payment for his cancelled journey…’[114]As set out in paragraph 15 of my findings, Mr Martin’s evidence to the tribunal was that the minimum payment would only be made for no work if the employee had left home for a call-out and presented himself at the prison but not if the employee received the call before he got to the prison (even if only a couple of minutes away), because ‘a line had to be drawn somewhere,’ is a valid point (whatever the wisdom of it). It is, essentially, a matter for the employer. However, the question which Mr Martin never asked himself was how the Claimant (or any other employee) knew where to draw the line. There was no evidence before Mr Martin that this line had ever been communicated to the Claimant or others and Mr Martin never considered it or made any finding on it. From the information available to Mr Martin, it was clear that there were no written instructions or policies on this. He did not take any account of the fact that there was no evidence whatsoever that this ‘line’ had ever been communicated.[115]What Mr Martin actually concluded at the time, was that the Claimant believed he was entitled to the payment (albeit wrongly) and that he had not raised this with management before submitting the time sheets (which Mr Martin considered to be irresponsible). On Mr Martin’s analysis, that was enough to amount to a fraudulent claim. Allegation 3 27 of 37[116]The allegation here was that the Claimant removed scaffolding poles from HMP Northumberland without the appropriate authority [page 108]. As set out in my findings, it was not expressed in terms as ‘theft’. However, that is how Mr Mushet interpreted it and Mr Martin adopted that characterisation. In his investigation report, Mr Mushet noted that ‘if proven, the allegation of theft is considered as gross misconduct’. Mr Mushet also noted in his report the lack of clarity in Mr Lillico’s statement. Further, on page 107, he wrote that ‘JC believed he had permission from JL to remove the scaffolding from site’. He established that there was no ‘formal’ authority given (e.g. a gate pass) to remove the equipment from site and stated that there was no ‘proper’ authority. Thus, the investigation report simultaneously stated that: Mr Lillico’s statement may be unclear; the Claimant believed he had permission to remove the scaffolding; there was no ‘proper’ authority to remove the assets (whatever Mr Mushet meant by ‘proper’). Considerable reliance was placed on Mr Johnston’s statement.[117]Mr Martin did not ask Mr Mushet any questions about his apparent findings on the Claimant’s belief or the lack of clarity of Mr Lillico’s statement or what Mr Mushet meant by lack of ‘proper’ authority. He did not himself seek to clarify with Mr Lillico what he meant. When the issue of ‘permission and authority’ was discussed at the disciplinary hearing, Mr Martin declined to explore this further with Mr Mielnik, despite it being raised by the Claimant.[118]As set out in paragraph 52 above, Mr Martin also declined to interview Mr Borthwick (which the Claimant asked him to do). In considering Mr Martin’s evidence as to why he refused to interview Mr Borthwick, I conclude that he has missed the point – which was that, if an employee had intended to steal some scaffolding poles, does it not seem odd that he went to ask not one but two managers for permission to borrow them? A simple inquiry could have established whether the Claimant had asked Mr Borthwick.[119]Had Mr Martin interviewed Mr Borthwick and had he established that the Claimant had asked not one but two managers about borrowing the scaffolding (as the Claimant had contended) this might have been relevant to the key issue of whether he had intended to steal the scaffolding. Further, Mr Mushet had noted that Mr Lillico’s statement could be interpreted as unclear. Neither Mr Martin (nor Ms Thompson at the appeal stage) considered whether this lack of clarity might have led the Claimant genuinely but mistakenly to believe that he had permission to take the scaffolding. Further, neither Mr Martin or Ms Thompson considered whether – and they certainly made no finding – the Claimant took the scaffolding with the intention of not returning it. They concluded only that he did not have permission and that, by removing the scaffolding, he did so without authority or permission, which amounted to theft.[120]It is clear to me that there were defects in the investigation into allegation 3 as well, in particular the failure to explore the issue of permission with Mr Mielnik. Mr Martin sought to defend his decision not to re-interview Mr Mielnik on 28 of 37 the basis that he had already been interviewed by Mr Mushet and he never mentioned that he understood the Claimant to have permission to take the scaffolding. However, that does not stand up to scrutiny. As set out in my findings, Mr Mushet has explained to Mr Mielnik that the claimant said he took scaffolding under the impression that he had the relevant permission. There was no indication that it was explained to Mr Mielnik that there was an issue regarding the Claimant’s impression. Nor was Mr Mielnik asked whether he understood the Claimant to have permission.[121]The investigative interview of the Claimant [page 119-120] is brief. There were four questions asked of him. He was not asked to say where or when he asked for permission, whether he recalled if anyone was present when he asked for permission. The Claimant was not told that he was suspected of taking the scaffolding without permission. The Claimant was not told that he was suspected of stealing the scaffolding until the disciplinary invite letter of 01 July 2021.[122]Mr Martin’s reasoning for not exploring the issue of permission with Mr Mielnik was twofold. The first was that he (Mr Mielnik) had not mentioned that the Claimant had permission when he was interviewed by Mr Mushet. However, referring back to my finding in paragraph 54 above, Mr Mielnik was not asked about permissions at the investigatory stage, Mr Martin understood that what Mr Mielnik had to say was a ‘key point’ (page 232: ‘your rationale for this decision’) yet took no steps to investigate this.[123]The second reason for not exploring it with Mr Mielnik was that there was, essentially, no point in any event because Mr Martin would not attach weight to what Mr Mielnik might say because Mr Lillico was ‘beyond reproach’. This is inherently unfair and so far outside the range of reasonable investigation as to speak for itself. This preconception of Mr Lillico unfairly tilted the process against the Claimant. It demonstrates a bias based on a perception of Mr Lillico’s truthfulness resulting in a real prejudice to the Claimant in terms of fairness. As with allegations 1 and 2, he was deprived of a critical line of inquiry.[124]Looking at matters at the dismissal stage, in my judgement the Respondent’s investigation into allegation 3 was not a reasonable investigation, applying the objective standard of the reasonable employer and did not give reasonable grounds to sustain a belief that the Claimant had stolen scaffolding poles.[125]However, I must consider at what happened at the appeal stage, in respect to all the allegations, because I must look at the whole picture. The appeal[126]It is not a case of asking whether the appeal was a rehearing or a review. Mr Wilkinson submitted that the appeal in this case cured any defects in the 29 of 37 original disciplinary hearing (were I to find any). He relied, in particular, on Ms Thompson’s investigations.[127]Ms Thompson did interview Mr Mielnik in relation to allegation 3. She did not ask him about what he said in relation to the overtime payments. Having spoken to Mr Mielnik, she emailed Mr Lillico [page 198]. As set out in my findings he replied on 04 November, repeating that he said ‘I did not want anything to do with that’ and that he could not recall if Les Melniek was present. Ms Thompson also emailed Mr Mushet to ask him if Mr Mielnik had stated in the interview that, when interviewed, he had mentioned overhearing Mr Lillico say that the Claimant could take the scaffolding. Mr Mushet’s reply – now over 5 months after that interview - was that it was not stated at the interview.[128]In my judgement what Ms Thompson did was the bare minimum – but she did something, at least, in relation to allegation 3. She spoke to Mr Mielnik and she followed up, in minimal fashion, with Mr Mushet and Mr Lillico. She concluded at the time that she did not believe that Mr Lillico gave the Claimant permission to take the scaffolding.[129]This puts into context Mr Wilkinson’s question of Ms Thompson and submission to me that, had it just been allegation 3, the outcome would have been dismissal. But it was not just allegation 3 that Mr Martin and she considered and they did not consider them separately for the purposes of applying a sanction. Ms Thompson ultimately upheld Mr Martin’s decision and did not distinguish between the two.[130]Given the earlier significant defects, in the circumstances of this case, the appeal was not so comprehensive (and was itself not free of defects – Ms Thompson did not speak to Mr Potts or Ms Patrick or Mr Borthwick) such as to render the dismissal fair. This is because of the nature of the unfairness at the dismissal stage – the failure to pursue such an obviously key line of inquiry in relation to the fraudulent overtime claim (interviewing Mr Potts and Ms Patrick and asking Mr Lillico whether, and if so, how he came to approve payment) was not looked at on appeal. The failure to pursue the line of inquiry in relation to the scaffolding allegation (interviewing Mr Borthwick) was not looked at on appeal. The unreasonable failure by Mr Martin to re-interview Mr Mielnik about ‘permission’ was revisited by Ms Thompson, and to that extent, it can be said, and I so conclude, that this particular defect or failure was to an extent ‘cured’ on appeal. However, Mr Martin’s unfair refusal to interview him manifested in a degree of unfairness at the appeal stage in that Ms Thompson approached Mr Mielnik’s evidence from the outset with suspicion. As she set out in paragraph 20 of her witness statement, she thought it very suspicious that the statement was only provided so close to the appeal hearing. That is unfair on the Claimant given that he had pressed for Mr Martin to interview Mr Mielnik on 06 July 2021, which was a mere 5 days after he had first been notified of the allegation against him. 30 of 37[131]Nevertheless, Ms Thompson did interview Mr Mielnik. This undoubtedly made up for some of the previous failures – but the scaffolding was only a part of the reason for dismissal, equally with the overtime claim, in respect of which Ms Thompson made up no ground on the earlier significant failures. Therefore, having considered all of the facts, including the nature of the allegations, the investigation, the disciplinary hearing and the appeal hearing, for the reasons set out above, I conclude that the Respondent did not have reasonable grounds on which to sustain their belief in the reason for dismissal (that reason being both the matters for which the Claimant was dismissed). Sanction[132]Neither Mr Martin nor Ms Thompson considered the seriousness or severity of the Claimant’s conduct. They considered the seriousness of the characterisation of the conduct as ‘fraud’ and ‘theft’ and, I conclude, simply jumped to an automatic conclusion that, this amounting to gross misconduct meant summary dismissal was the only outcome. Ms Thompson did not consider sanction at all. Nowhere in the notes or in the outcome letters is there any hint of considering alternative sanctions or of the Claimant’s long service and good record.[133]As regards allegation 3’, the Respondent was aware that the scaffolding had been lying around, unused in an area referred to as a bit of a dumping ground. The Respondent did not, at the time, know who owned the scaffolding. The Respondent could not say whether the scaffolding had been abandoned – Ms Thompson had been told by Mr Lillico that he assumed it had possibly been left by contractors in the past. The Respondent did not conclude that the Claimant had intended not to return the scaffolding. Is it automatic that such a state of affairs will result in dismissal simply because the employer has characterised this as theft? No, it is not. If the property had been abandoned and no owner could be traced – as on the evidence appears to be the case – and no owner had been identified, is this a relevant consideration in considering sanction? In my judgement, yes. A reasonable employer would inevitably consider all of those things and ask whether they are mitigating circumstances. This employer did none of those things and acted unreasonably in proceeding straight to the sanction of dismissal.[134]I reiterate that the reason for dismissal was ‘both’ the fraudulent claim and the theft of the scaffolding. It is artificial to accede to Mr Wilkinson’s submission that allegation 3 is enough on its own to warrant summary dismissal. In any event, had it just been allegation 3 that was under consideration, the Respondent would have been left with a situation where untraceable, most likely abandoned scaffolding poles which were left in an area known as a dumping ground had been taken without obtaining authority from someone. On the Respondent’s case it is not clear who could have given that authority – Mr Lillico said it had nothing to do with him. 31 of 37[135]Standing back and looking at matters in the round and determining the question of fairness in accordance with equity and the substantial merits of the case, I conclude that the having regard to the reason shown by the Respondent, it did not act reasonably in treating that reason as a sufficient reason for dismissal. Therefore, the Claimant’s complaint of unfair dismissal is upheld. Before I turn to matters of remedy, I shall next address the other substantive complaint. Wrongful dismissal[136]The approach to a wrongful dismissal claim differs to that of an unfair dismissal claim. It is for the Respondent to establish on the evidence that the Claimant, by his conduct, repudiated the contract of employment by doing the things that the Respondent says he did: namely, dishonestly or fraudulently claim overtime payments and/or dishonestly steal scaffolding. It is enough that the Respondent establishes any repudiatory conduct, whether or not it was the conduct relied on as the reason for dismissal.[137]Having considered the evidence carefully and listened to and observed the Claimant, I conclude that the Respondent has not established to my satisfaction that the Claimant stole scaffolding or that he fraudulently submitted a claim for payment in circumstances where he knew he was not entitled to take it or that he had otherwise repudiated the contract of employment.. Those were the arguments advanced by the Respondent in this hearing.[138]Indeed, I am satisfied from the evidence that the Claimant genuinely and honestly believed that he was entitled to be paid for the minimum 4 hours payment. I accept his evidence as honest evidence that Mr Potts showed him how to complete and submit the timesheets. I accept his evidence that Ms Patrick was aware of the practice. I accept his evidence that he had been paid in the past for abandoned call outs in circumstances where he had not attended work because they had been called off before he got there.[139]The Respondent could have called Mr Potts or Ms Patrick as witnesses. Equally, they could have called Mr Lillico. Had they done so, they might have adduced some evidence that the process for payment on aborted call-outs was well understood and depended on employees either doing some work or presenting at the prison for work, contrary to what the Claimant said in evidence. They could have adduced evidence directly from Mr Lillico to say that he did not know of the abandoned call out on 14 February and that his approval of the payment was made in ignorance (if indeed that were the case). He could have given evidence about his discussions with the Claimant regarding the scaffolding, to counter what the Claimant said in evidence. But the Respondent did not call any such evidence. Instead, it relied on the documents in the bundle, the belief of Mr Martin and Ms Thompson and relied on any answers obtained in cross examination of the Claimant. 32 of 37[140]Mr Lillico is not recorded as saying that he refused permission to take scaffolding; nor is he recorded as explaining to the Claimant what the ‘process for removing an asset’ was or who he should go to.’ His statement was simply: ‘I wanted nothing to do with it’. This cries out for some further questions. He was the manager after all. He could have directed the claimant to the appropriate source if he was not the right person to ask. The Respondent never suggested that property such as apparently abandoned scaffolding could not be removed from site at all.[141]I accept the Claimant’s evidence as truthful. I find that Mr Lillico told the Claimant that he could take the scaffolding poles (see para 24 above). Mr Lillico most probably said something like ‘they have nothing to do with me, you can take them’. I arrive at that finding from a variety of sources: the tested evidence of the Claimant (in the sense that he was cross-examined); the note from Mr Mushet of his interview with Mr Lillico; the note of interview of Mr Mielnik; the fact that the Claimant had asked two managers for permission, thereby pointing away from any dishonest intent; the acknowledgement by Mr Mushet in his report that Mr Lillico’s statement could be interpreted as unclear. I acknowledge that Mr Wilkinson scored some points in the cross examination of the Claimant as to the content of Mr Mielnik’s statement (namely that the Claimant said in cross examination that Mr Mielnik told him that he did not mention anything about permission in his interview with Mr Mushet because he was not asked about it, whereas in his statement at page 221, he said to Ms Thompson that he had mentioned it). That is, without doubt an inconsistency. However, it is not evidence from which I can properly infer that Mr Mielnik was not witness to Mr Lillico giving permission. There is the Claimant’s evidence that Mr Lillico gave permission. It was not in dispute that the Claimant asked for permission. Mr Lillico’s note to Ms Thompson was that he could not recall if Mr Mielnik was present. Mr Mielnik may have been wrong about mentioning it to Mr Mushet. It was, after all, some 5 months after what was a very brief interview with Mr Mushet.[142]The Claimant was entitled to 12 weeks’ notice of termination. He was dismissed with no notice. The Respondent has failed to establish that the Claimant repudiated the contract of employment. His complaint of wrongful dismissal is upheld.[143]I now turn to other aspects: Contributory Conduct and Polkey Contributory conduct[144]I have considered, first whether the dismissal was to any extent caused or contributed to by any action of the Claimant such that there should be a reduction under section 123(6) ERA 1996. This is not a question of focusing on the employer’s assessment of the culpability of the Claimant’s conduct. Rather, I must focus on what the Claimant did or did not do. I take the call out payment claim first. I found that the Claimant genuinely followed the practice he had been shown and genuinely believed in payment. That leaves the fact that he made the 33 of 37 claim for overtime without first checking whether he was entitled to it. However, if (as I have found) he genuinely believed that was his entitlement, why should he check every time, given that was the practice that, as far as he knew, had always been applied? His failure to check was not, in my judgment, culpable or blameworthy – even in the wide sense as set out in the case law: Nelson.[145]I next considered the scaffolding issue. This is in a different category. Although I have found that Mr Lillico gave the Claimant permission to remove the scaffolding, I am bound to recognise that the Claimant did not take steps to ensure that the permission was clear and obvious. It was, in my judgement, foolish of the Claimant not to seek to obtain some written confirmation or acknowledgement for removal of the scaffolding. This would not have been a difficult thing for him to do. He may have been naïve but it was nonetheless foolish on his part and in my judgement unreasonable not to obtain some form of written authority. That failure, on any objective analysis, contributed to his dismissal – it was referred to a number of times as not having ‘proper’ or ‘appropriate’ or ‘written’ authority.[146]It was, however, only a factor in the overall decision to dismiss the Claimant. The scaffolding event played an equal role to the call out event in the decision to dismiss. Even in relation to the scaffolding event, the failure to obtain written approval was only a factor among other factors such the Claimant telephoning to speak to Lez Mielnik shortly before collecting the scaffolding and Mr Mielnik checking the CCTV. I also take into account that, even on the Respondent’s account, it was not always necessary to obtain written approval or a gate receipt and that no-one directed the Claimant where or how to obtain one, despite him asking twice. Doing the best I can with those conclusions, I consider it just and equitable to reduce the Claimant’s compensatory award by 10%.[147]Turning to the basic award, under section 122(2) I may take the same conduct into account. The only difference in the approach here is the absence of any causative requirement in section 122(2). There is nothing that caused me to apply a different percentage to the basic award. Accordingly, I consider it just and equitable that it be reduced by the same proportion, namely 10%. Polkey[148]I must now consider whether the Respondent could have fairly dismissed had it acted as a reasonable employer would have, and what are the chances that it would have fairly dismissed the Claimant. All ‘Polkey’ exercises are difficult and involve elements of speculation. Some may be more difficult than others. But that is no reason not to at least attempt to carry out the exercise.[149]I have considered whether the Respondent could have fairly dismissed the Claimant had it acted reasonably. What would acting reasonably have involved? I find it would have involved at least the following: 34 of 37(1) Interviewing Mr Potts and Ms Patrick upon the Claimant identifying them as relevant witnesses;(2) Interviewing Mr Lillico about approval of the payment for 14 February 2021 and his knowledge of the cancellation of the call out;(3) Informing the Claimant in advance of 11 May 2021 that he was being investigated in respect of an allegation of theft of scaffolding poles;(4) Interviewing Mr Mielnik when the Claimant identified him as a relevant witness prior to making a decision at the disciplinary hearing stage;(5) Returning to Mr Lillico, prior to the dismissal decision, to ask him to clarify his statement and to discuss the issue of permission, in light of what Mr Mielnik had to say;(6) Considering the sanctions applied to Mr Mielnik and Mr Wingfield;[150]Mr Wilkinson submitted that the Claimant would inevitably have been fairly dismissed on the scaffolding issue alone.[151]It was open to the Respondent to call Mr Mr Potts, Ms Patrick and Mr Lillico. Their evidence could then have fed into an analysis of what might have happened had the Respondent acted reasonably. But they did not. It was very tempting to accede to Mr Wintrhop’s submission that I should not undertake the Polkey exercise because it is too speculative. However, I must look at all the evidence, and that includes the evidence of Ms Thompson and what she did on at the appeal stage. In relation to allegation 1 and 2 she essentially reviewed the decision of Mr Martin and confirm that she agreed with it. As regards that matter, had Mr Martin (or for that matter, Ms Thompson) investigated the matters raised by the Claimant in relation to custom and practice on the payment issue, it is possible he may reasonably have arrived at the conclusion that there was no custom and practice (even though I might disagree with him). However, the Respondent, by not adducing evidence from Mr Potts, Ms Patrick or Mr Lillico, has made this an extremely difficult exercise. I have accepted the Claimant’s evidence as honest and genuine. Although, I cannot entirely rule out that the Respondent, acting reasonably might conclude otherwise, nevertheless, the Respondent must be able to point to some sufficient evidential basis for justifying a Polkey reduction and in respect of allegations 1 and 2, they have not. A Polkey exercise involves an element of speculation but it must still be evidential based.[152]As regards allegation 3, Ms Thompson interviewed Mr Mielnik and also emailed Mr Mushet and Mr Lillico. In my judgement, she did the bare minimum and approached the exercise with a suspicious, not an entirely open mind. She would not have interviewed Mr Mielnik had it not been for the fact that the Claimant presented her with a statement. Nonetheless, she did; and she arrived 35 of 37 at the conclusion that Mr Lillico did not, on the balance of probabilities, give permission.[153]That leaves me with the possibility that, had the Respondent done this earlier, it might, on the basis of allegation 3 alone, have fairly dismissed the Claimant. However, I disagree with Mr Wilkinson that the evidence demonstrates that the Respondent would have fairly dismissed the Claimant. There are other considerations, such as the gravity of the offence. The gravity of the offence is not determined by the label attached to it, in this case ‘theft’. It does not follow that because a person has found to have committed an act of ‘fraud’ or ‘theft’ that they will inevitably dismissed. That is adequately established in this case, when one considers the sanction applied to Mr Mielnik for fraudulently claiming the overtime payment. He was issued with a final written warning.[154]Further, despite Mr Martin and Ms Thompson saying in evidence that they believed Mr Mielnik had knowingly facilitated the theft of the scaffolding by the Claimant, no action was taken against him at all. I acknowledge that the Respondent could reasonably distinguish between the alleged thief and the alleged accomplice. Nevertheless it is still a serious state of affairs, in respect of which the Respondent was content to allow Mr Mielnik to continue in employment.[155]There is also the fact that nobody knew who owned the scaffolding; nobody knew how long it had been left in the compound; nobody knew whether it had been abandoned. Nobody considered whether the Claimant had intended to return the property – even if he did not have permission. Nobody considered whether he might have mistakenly believed that he had permission. All of these would factor into the assessment of the chance of fairly dismissing the Claimant.[156]Standing back and looking at these matters overall, realistically the chances that Mr Martin would fairly have dismissed the Claimant are, in my judgement, not high. I assess the prospect that the Respondent would have fairly dismissed the Claimant as 20% and reduce the compensatory award by that proportion.
Remedy
[157]In light of my conclusions, the parties must inform the Tribunal within 21 days of receipt of this reserved judgment whether they will be able to resolve all matters of remedy or whether they require a remedy hearing to be listed and if so, to write with suggested directions. Employment Judge Sweeney Date: 25th April 2022 36 of 37 ANNEX LIST OF ISSUES What was the reason for dismissal?[2]Can the Respondent show that the reason or principal reason for the dismissal was a potentially fair reason under section 98(1) of the Employment Rights Act 1996 (‘ERA’) namely, that it was a reason related to conduct?[3]Did the Respondent act reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the Claimant? [section 98(4)][4]Did the Claimant, by his conduct, repudiate the contract of employment such that the Respondent was justified in terminating his contract of employment summarily?[5]If the Claimant was unfairly dismissed, should any award be reduced on the following grounds and, if so by how much:a. Should the basic award be reduced because, due to the Claimant’s conduct before the dismissal, it would be just and equitable to reduce it (under s122(2) ERA)?b. Should the compensatory award be reduced on grounds of contributory fault (under s123(6) ERA)?c. Should the compensatory award be reduced on grounds of Polkey and/or Software 2000 v Andrews? 37 of 37