Mr M Rozalski v The Co operative Group Ltd: 2601189/2018

EMPLOYMENT TRIBUNALS

Case No 2601189/2018

Between

Mr M RozalskiClaimant

The Co-operative Group LimitedRespondent

Before

Employment Judge Batten

Mr P Gorasia (instructed by Counsel) for respondent

Date 30 October 2018

JUDGMENT

The judgment of the Tribunal is that the claimant’s claim of unfair dismissal is not well-founded and is dismissed.

REASONS

[1]The claimant commenced his claim on 27 May 2018, and claimed unfair dismissal and race discrimination. At a case management preliminary hearing on 29 October 2018, the claimant’s representative withdrew the claim of race discrimination claim and that claim was dismissed on 30 October 2018. The claimant’s representative raised the possibility of a claim for holiday pay at the case management preliminary hearing and the Employment Judge invited the claimant to make an application to amend the claim to include a claim for holiday pay. However, no application was ever received by the Tribunal. The final hearing therefore dealt only with the claim of unfair dismissal. Case No: 2601189/2018 2

Evidence

[2]The Tribunal was provided with an agreed bundle of documents, to which was added a ‘store specific risk assessment’ for the respondent’s Manor Park store in Sheffield, and also 3 statements that the claimant gave to the second stage appeal officer.

[3]The claimant gave evidence himself and called 4 witnesses in support, who all tendered written witness statements: Mr Piotr Szul, Mr Krzysztof Wojcik, Mr Arkadiusz Wietrzykowski and Ms Edyta Szul. The last witness did not attend to give evidence. The claimant and his 3 witnesses attended to give evidence and were subject to cross examination.

[4]The respondent called 4 witnesses: Mr Neil Finlayson - its investigating officer, Mr Gary Roberts - the dismissing officer, Mr Leon Exton-Russell who handled the claimant’s first appeal, and Mr Michael Stewart who handled the second stage appeal.

Issues

[5]At the preliminary hearing on 29 October 2018, a list of the issues to be determined at the final hearing had been drawn up. Following discussions at the commencement of the final hearing, the test in British Home Stores v Burchell

[1978] IRLR 379

was added to the list. The final agreed list of issues to be determined was as follows: Unfair dismissal5.1 What was the principal reason for dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The respondent asserts that it was a reason relating to the claimant’s conduct.

5.2 If so, was the dismissal fair or unfair in accordance with ERA section 98(4), having regard to:5.2.1 Whether the respondent held a genuine belief in the claimant’s misconduct;

5.2.2 whether that belief was based on reasonable grounds;

5.2.3 whether the respondent carried out a reasonable investigation; and

5.2.4 whether the respondent followed a fair procedure.

5.3 Did the respondent in all respects act within the ‘band of reasonable responses’? Remedy for unfair dismissal Case No: 2601189/2018 3

5.4 If the claimant was unfairly dismissed and the remedy is compensation:5.4.1 if the dismissal was procedurally unfair, what adjustment, if any, should be made to any compensatory award to reflect the possibility that the claimant would still have been dismissed had a fair and reasonable procedure been followed / have been dismissed in time anyway?

5.4.2 would it be just and equitable to reduce the amount of the claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2); and if so to what extent?

5.4.3 did the claimant, by blameworthy or culpable actions, cause or contribute to dismissal to any extent; and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to ERA section 123(6)?

Findings of fact

[6]The Tribunal made its findings of fact on the basis of the material before it, taking into account contemporaneous documents where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities and took into account its assessment of the credibility of witnesses and the consistency of their evidence with surrounding facts. The findings of fact relevant to the claim and the issues to be determined are as follows.

[7]The claimant was employed by the respondent from 20 June 2010 until 26 January 2018 as a Lorry Driver. Prior to 20 June 2010, the claimant worked for the respondent for a period in 2009 via an agency. The claimant first worked out of the respondent’s Thurrock depot in Essex. On or about 21 August 2016, the claimant transferred to work out of the Castlewood distribution centre in South Normanton, Nottinghamshire.

[8]The Respondent has a number of policies and procedures covering driver duties and deliveries. At induction, and also upon transfer between depots, drivers are taken through a pack of procedures to ensure that their knowledge is up to date. The claimant went through these for his induction at Thurrock and went through them again as refresher training upon transfer to the respondent’s Castlewood distribution centre in 2016. He completed a number of checklists and signed to acknowledge the training he had had. Due to a mix up over the time, the claimant missed the first 3 hours of the refresher training that took place at Castlewood. However, those hours were largely confined to HR procedures and did not cover anything specific to driving duties. Therefore, the claimant’s refresher training covered driving duties in full. The respondent’s induction and training on driving duties and responsibilities included a mentoring scheme Case No: 2601189/2018 4 with time spent observing others and learning the respondent’s procedures and safe systems of work for driving and delivery.

[9]The relevant policies, or extracts from them, were in the bundle. The respondent publishes a Driver Guide and Mentor sign-off pack which is marked to show that the claimant had completed the numerous tasks set. The respondent has a Driver Handbook which includes guidance on the operation of tail lifts and also safe systems of work and procedures for delivering goods to stores from the respondent’s lorries.

[10]There is also a national agreement made with the recognised trade unions which includes a disciplinary policy in the bundle at pages 315 to 317 and there is a driver handbook which includes guidance on the operation of tail lifts and safe systems of work and procedures which extracts appear in the bundle. The claimant signed to acknowledge receipt of the Driver Handbook on 29 July 2016 and also on 22 August 2016 when he also signed training record sheets covering training on the Ratcliffe Column Tail-lift Operation and also Rear Vehicle Working.

[11]On 23 November 2017, the claimant took a delivery to the respondent’s store in Manor Park, Sheffield. The area outside the back of the store where the respondent’s lorries park in order to deliver, is on a slight slope and the surface is uneven and largely covered in loose gravel. In addition, a public right of way runs along the edge of the delivery area.

[12]The claimant arrived at the Manor Park store and commenced his delivery. Once parked up, he lowered the tail lift at the back of the lorry and then made adjustments to the position of the lorry by moving the lorry with the tail lift down and also by altering the suspension slightly. The goods to be delivered are stacked inside metal “cages” which are on wheels in order that they can be moved.

[13]In the course of the delivery, whilst the claimant was inside the store, a cage of crisps rolled to the open back of the claimant’s lorry and fell from height out of the vehicle and onto the tail lift below. Nobody was hurt and no damage was sustained nor stock lost. The claimant dealt with the fallen cage and completed the delivery. He then went on to make a second delivery to another store before returning to the Respondent’s depot where he reported the cage fall from height.

[14]The cage fall was classed as a ‘near-miss’ incident by the Respondent. The claimant was interviewed that day and the CCTV footage of the area outside the Manor Park store was retrieved and reviewed. The Tribunal viewed relevant extracts from the CCTV footage and still pictures appear in the bundle at page 217. As a result of the CCTV footage, the Respondent commenced an investigation.

[15]On 24 November 2017, the claimant was suspended from work and a shift manager, Mr Finlayson, was appointed to investigate matters. He arranged to look at the CCTV material and to speak to the claimant. Case No: 2601189/2018 5

[16]On 27 November 2017, the claimant attended an investigatory meeting with Mr Finlayson, accompanied by his trade union representative. The notes of that meeting appear in the bundle at pages 228 to 239. As a result of the meeting, Mr Finlayson decided there was a disciplinary case to answer and he referred the matter to Mr Roberts, the Transport Manager, who is a person at the respondent’s depot who has authority to handle disciplinary matters and to dismiss if that sanction is appropriate.

[17]The claimant faced five allegations of breaches of health and safety and a failure to follow safe systems of work as follows:-• Reversing a vehicle whilst the tail lift was lowered and deployed and while pedestrians and colleagues were in the area;

• Leaving the load unsecured by failing to use cups or bars whilst delivering cages into the store;

• Not using cage chocks to stop cages rolling from the vehicle whilst delivering cages into the store;

• On two occasions there were more than 3 cages on the tail lift which is outside of the safe system of working procedure;

• Failing to report the incident immediately and only reporting upon return to depot after completing the delivery run.

[18]On 4 December 2017, the claimant was signed off work, sick, with work related stress.

[19]On 26 January 2018, a disciplinary hearing took place conducted by Mr Roberts. The claimant had a trade union representative with him at the meeting. The minutes of the meeting appear in the bundle at pages 245 to 251. In the course of the meeting the claimant admitted to leaving the load unsecured - allegation 2 and he also admitted that he had not reported the incident immediately as required - allegation 5. At the end of the meeting, after a short break the claimant was summarily dismissed for gross misconduct.

[20]The dismissal letter appears in the bundle at page 252 to 253 and it describes the claimant’s dismissal as “on the grounds of gross misconduct due to a serious breach of Health and Safety with vehicle procedures resulting in a cage falling from height on 23 November 2017.”

[21]The claimant appealed. On 19 February 2018, a first stage appeal was conducted by Mr Exton-Russell, the Depot General Manager. The notes of the appeal meeting appear in the bundle at pages 261 to 270. The appeal was unsuccessful and the letter turning down the first appeal dated 5 March 2018 appears in the bundle at pages 271 to 273.

[22]On 9 May 2018, a second stage appeal was conducted by Mr Stewart, Depot General Manager of the respondent’s Lea Green depot on Merseyside. The notes of the second stage hearing appear in the bundle at pages 280 to 290. At the second stage appeal, the claimant produced statements from colleagues about the training provided by the respondent Case No: 2601189/2018 6 and also about other employees that the claimant said had been treated more leniently than him. The claimant’s second stage appeal was also unsuccessful. The letter turning down the claimant’s second stage appeal dated 16 May 2018, appears in the bundle at pages 291 to 293. The applicable law Unfair Dismissal

The applicable law

[23]Section 98 of the Employment Rights Act 1996 sets out a two stage test to determine whether an employee has been unfairly dismissed. First, the employer must show the reason for dismissal or the principal reason, and that reason must be a potentially fair reason for dismissal. In this case, the respondent contends that the reason for dismissal was the claimant’s conduct.

[24]Conduct is a potentially fair reason for dismissal under Section 98 (2) (b) of the Employment Rights Act 1996.

[25]If the respondent employer shows a potentially fair reason in law, the Tribunal must then consider the test under section 98(4) of the Employment Rights Act 1996, namely whether, in the circumstances, including the size and administrative resources of the respondent’s undertaking, the respondent acted reasonably or unreasonably in treating that reason, i.e. conduct, as a sufficient reason for dismissing the claimant and the question of whether the dismissal is fair or unfair shall be determined in accordance with equity and the substantial merits of the case.

[26]In considering the reasonableness of the dismissal, the Tribunal must have regard to the test laid out in the case of British Home Stores -v- Burchell

[1978] IRLR 379

and consider whether the respondent has established a reasonable suspicion amounting to a genuine belief in the claimant’s guilt and reasonable grounds to sustain that belief and the Tribunal must also consider whether the respondent carried out as much investigation as was reasonable in the circumstances.

[27]The issue of the reasonableness of the dismissal must be looked at in terms of the set of facts known to the employer at the time of the claimant’s dismissal, although the dismissal itself can include the appeal; so matters which come to light during the appeal process can also be taken into account: West Midlands Co-operative Society Ltd -v- Tipton

[1986] IRLR 112

[28]The Tribunal must also consider whether the decision to dismiss fell within the band of reasonable responses open to a reasonable employer in the circumstances of the case: Iceland frozen Foods Ltd -v- Jones

[1982] IRLR 439

. The range of reasonable responses’ test applies both to the decision to dismiss and to the procedure by which that decision is reached: Sainsbury’s Supermarkets Ltd –v- Hitt

[2003] IRLR 23

. Case No: 2601189/2018 7

[29]The ACAS Code of Practice on Disciplinary and Grievance Procedures contains guidance on the procedures to be undertaken in relation to a dismissal for conduct or capability. Although compliance with the ACAS Code is not a statutory requirement, a failure to follow the Code should be taken into account by a Tribunal when determining the reasonableness of a dismissal.

[30]The Tribunal considered a number of cases to which it was referred by the parties in submissions. The cases were: Ramphal v Department for Transport

UKEAT/0352/14

Paul v East Surry District Health Authority

[1995] IRLR 305

CA Hadjioannou v Coral Casinos Limited

[1981] IRLR 352

EAT The Tribunal took those cases as guidance and not in substitution for the provisions of the relevant statutes. Conclusions (including where appropriate any additional findings of fact)

[31]The Tribunal has applied its relevant findings of fact and the applicable law to determine the issues in the following way.

[32]The respondent’s case was that it dismissed the claimant for conduct. That is a fair reason in law. The reason for dismissal advanced by the respondent was the claimant’s misconduct in failing to follow safe operating procedures and safe systems of working amounting to breaches of health and safety. The respondent’s reason was not challenged by the claimant. In those circumstances and in light of the evidence, the Tribunal considered that the respondent had shown the reason for dismissal was conduct and a potentially fair reason.

[33]The Tribunal then considered the test under section 98(4) ERA and in British Home Stores -v- Burchell. The Tribunal concluded that the respondent had a genuine belief, on reasonable grounds, after a sufficient investigation that the Claimant was guilty of the misconduct alleged. The CCTV footage clearly shows errors and breaches of the safe systems of work by the claimant, including that the claimant moved his vehicle whilst the tail lift was lowered and deployed. Such movement may well have caused or contributed to the cage fall which could have been very serious, had it hit a passer-by. It was fortunate that it did not. Despite the cagefall, the claimant did not report the incident straightaway as he should have done. That failure to report was accepted by the claimant in evidence. He said that he had forgotten to report it at the time. In addition, the claimant admitted at the time and in evidence that he did not use or quite possibly did not even consider using the safety equipment, the chocks, the cups and the bars that were available to him in the vehicle precisely to ensure that the load did not shift or fall out.

[34]In his defence, the claimant made much of the condition of the delivery area. The Tribunal viewed parts of the CCTV footage and was provided with photographs from a variety of angles. The Tribunal saw that the area to the rear of the store was on a slight slope, uneven and had loose gravel Case No: 2601189/2018 8 on the surface. However, the site was well-known to the claimant who had delivered there before. The Tribunal considered that such knowledge should have made the claimant alert to difficulties and the increased potential for accidents and he would have known that he needed to be more careful than usual when parking up and delivering. The evidence before the Tribunal confirmed that the claimant was an experienced driver who had been thoroughly trained and was aware of safe operating procedures but he failed to follow that training or procedures when undertaking safety critical manoeuvres at the store. In all the circumstances, and taking account of the claimant’s admissions, the Tribunal concluded that the respondent had a genuine belief, on reasonable grounds, that the claimant had committed the misconduct as alleged.

[35]The respondent’s investigation was conducted by Mr Finlayson, who reviewed the CCTV footage and the respondent’s driving procedures, interviewed the Claimant in the presence of his trade union representative and went through the CCTV footage with him. The claimant explained what he had done to move the vehicle and what had happened with the cages and Mr Finlayson noted his admissions. The claimant was unable to explain why he had put 3 cages onto the tail lift. He said he did not believe that using the safety chocks was compulsory and suggested that the vehicle’s suspension had moved which may have contributed to the incident. The Tribunal considered that there was little else the respondent could have done by way of investigation apart from a site visit. The respondent’s witnesses were cross-examined about whether they should have visited the site to inspect the conditions of the ground outside the rear of the store. The Tribunal considered that the investigation may have benefitted from a site visit but it could not conclude that such an omission rendered the investigation inadequate. The Tribunal considered that the lack of a site visit did not excuse the claimant’s conduct nor would it necessarily have made a difference to the conclusions which the respondent’s managers reached.

[36]In essence, the claimant’s representative’s submissions focussed on the sanction imposed on the claimant. The claim form indicated that the claimant hoped to get his job back and the thrust of his claim as presented at the hearing was to challenge the band of reasonable responses in light of the sanction imposed and the fact that nobody had been injured as a result of the cage fall incident. The Tribunal considered that, given the 5 very serious allegations of health and safety breaches, dismissal was an option available to the respondent in the circumstances of the case. The Tribunal has no power to overturn a dismissal or to put in place an alternative sanction. The approach to a Tribunal claim of unfair dismissal is effectively to conduct a judicial review of the decision to dismiss. The Tribunal cannot substitute its view for that of the respondent. The Tribunal accepted the respondent’s submission that a final written warning might be an alternative and appropriate sanction but that such does not place dismissal outside the band of reasonable responses even if the Tribunal considers the dismissal to be harsh. Case No: 2601189/2018 9

[37]The claimant’s representative also sought to argue that the claimant had been treated inconsistently to a number of comparators. Consistency of treatment as between employees in disciplinary matters is very important but to make a comparison, the circumstances of the employees have to be comparable; the circumstances must be truly parallel. The Tribunal heard from the comparators in detail. However, the Tribunal did not find that any of the comparators brought forward faced so many allegations or breaches in one incident and, perhaps unhelpfully for the claimant, when giving evidence more than one of the comparators stated that the delivery area at the back of the respondent’s Manor Park store was known to be very difficult terrain and they agreed, in cross-examination, that they would have used the safety chocks, cups and bars provided because of the difficulties which were known. Following the decision in the case of Paul v East Surrey District Health Authority, the Tribunal did not find the comparators relied upon to be in the same position as the claimant.

[38]The Tribunal considered the case of Hadjioannou v Coral Casinos Limited which is mentioned in the case of Paul and noted that Hadjioannou concerned a situation where an employee has been led to believe they would not be dismissed for certain conduct. That is not the position in this case. The claimant was at all material times aware of the seriousness with which the respondent viewed health and safety matters, of the procedures required and the potential for dismissal because, in fact, the claimant had been dismissed previously by the respondent albeit that he was reinstated on appeal.

[39]In addition, in the case of Paul, it was held that an employee who admits that the conduct proved is unacceptable and accept advice to avoid a repetition, can be regarded differently from an employee who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions. The Tribunal considered that the claimant’s attitude was displayed in the contents of his letters of appeal and at the appeal hearings. The claimant sought to argue in these proceedings, as in his appeals, that he had been a victim of racism and poor treatment by the respondent in the past although he did not pursue a claim of race discrimination. The claimant gave evidence of poor treatment which might amount to race discrimination. However, the Tribunal considered that such historic matters, which happened several years previously and which were on the face of it resolved, did not impact upon the respondent’s decision to dismiss. In any event, the Tribunal considered that a continuing sense of grievance by an employee cannot justify or excuse breaches of health and safety to the extent in this case or at all.

[40]The Tribunal also considered a number of other matters that were raised in submissions. The claimant’s representative questioned each of the respondent’s witnesses about the absence of an interpreter throughout the disciplinary process. The respondent admitted that the claimant was not offered an interpreter. Arguably, it may have been wise for the respondent to offer such although it was always open to the claimant or his trade union representative to request an interpreter. However, the Tribunal noted that there were 4 internal hearings in the disciplinary process, Case No: 2601189/2018 10 including the investigation meeting. The claimant was represented by several different, competent and experienced trade union officers. If an interpreter had been required or desired, the Tribunal considered that a request would have been raised by at least one of those officers at some point, if not by the claimant himself. In the circumstances, the Tribunal took the view that the issue of an interpreter was raised now with the benefit of hindsight. The interpreter issue arose because part of the respondent’s case was that the claimant had not understood the gravity of the incident on 23 November 2017 nor had he appreciated the seriousness of the allegations he faced. That suggestion was adopted by the claimant’s representative to pursue a line of criticism of each of the respondent’s managers for not making an interpreter available to the claimant. The Tribunal considered that a respondent does not have an duty to provide an interpreter in all cases and certainly not just because of a Claimant’s name or nationality and, in that regard, the Tribunal agreed with the submissions of Counsel for the respondent, that to make an assumption that somebody will need an interpreter, because of the style of their name or their nationality, might itself be discriminatory.

[41]The claimant’s representative argued that the claimant did not understand that he needed to show remorse or contrition and, therefore, an interpreter may have helped the claimant to appreciate such; in which case the claimant would have behaved differently and the outcome of the disciplinary process could have been different. This line of argument does not take account of the fact that the claimant had trade union representation at each stage. The Tribunal considered that one or more of those representatives would have, or should have asked or advised the claimant about the use of an interpreter if required. The claimant had been in the position of being dismissed by the respondent before and so he was aware of the disciplinary process and quite possibly aware of his right to request an interpreter.

[42]The Tribunal noted that the claimant had not chosen to pursue the issue of a lack of an interpreter prior to the final hearing in these proceedings. Instead, he focussed on his contention that the respondent had been racist and that the allegations against him were trivial. The respondent’s managers said, consistently, that the claimant had not shown insight or contrition when presented with the evidence of his misconduct. The respondent pointed to the fact that the claimant blamed others including the managers, the delivery area at the store, the store employees, he made vague allegations of racism within the respondent’s organisation and personnel, and in one of his appeal letters he mentions “trivial matters” which the Tribunal understood to be the claimant’s comment on the allegations against him.

[43]In addition, the claimant’s representative raised in submissions the lack of notes of certain conversations between the respondent’s managers. The conversations in question took place when the claimant’s disciplinary case was handed up to the next officer, at the next stage of the disciplinary process. Collusion was not specifically alleged in this case nor was it put to any of the respondent’s managers, in cross-examination, that there had Case No: 2601189/2018 11 been collusion. In those circumstances, the Tribunal did not find that there was any evidence of managerial collusion.

[44]In light of all the above, the Tribunal considered that the claimant’s case can be distinguished from that of each comparator and that the claimant’s dismissal fell squarely within the band of reasonable responses available to the respondent in the circumstances of this case and therefore was a fair dismissal. Given the circumstances of this case, and the evidence, the Tribunal considered that, even if the claimant’s dismissal had been found to be unfair for some reason, the Tribunal took the view that the claimant caused or contributed to his dismissal, not just by his misconduct but also by the approach he took, in blaming others for his misconduct.