Mr T Abdelkarim v Parkwood Leisure Ltd 3200447/2018
EMPLOYMENT TRIBUNALS
Case No 3200447/2018
Between
Mr T AbdelkarimClaimantParkwood Leisure LtdRespondent
Before
Employment Judge RussellMr J Middleton (instructed by Solicitor) for respondentDate 17 July 2018
JUDGMENT
The judgment of the Employment Tribunal is that:-(1) The dismissal of the Claimant was unfair.(2) The Claimant contributed to his dismissal. All awards are reduced by 25%.(3) The Claimant is awarded:a. Basic award: £3,000.96 – 25% = £2,250.72b. Compensatory award 9 weeks @ £201.25 = £1,811.25 – 25% = £1,358.44 Loss of statutory protection = £750(4) Recoupment a. Protected period is 1 November to 31 December 2017. b. Prescribed element is £1,358.44c. Total monetary award is £4,359.16d. Excess of monetary award over prescribed element: £3,072
REASONS
[1]By claim form presented to the Tribunal on 27 February 2018, the Claimant brought a complaint of unfair dismissal. The Respondent resisted it.[2]Today I heard evidence from the Claimant on his own behalf. I was provided with two signed witness statements on his behalf; one from Mr Giroud and one from Mr Tizaoualou. Neither attended Tribunal to give evidence and therefore I attach such weight as I thought fit in the circumstances. For the Respondent I heard evidence from Mr Kevin Carter and Mr Paul Nangle. I was provided with an agreed bundle of documents to which I had regard during the course of hearing the evidence.
Findings of Fact
[3]The Respondent provides commercial cleaning services to clients, one of which is the Mulberry School for Girls.[4]The Claimant was employed by the Respondent from 4 February 2009 to 30 October 2017, latterly as a cleaning supervisor. He was responsible for overseeing the work of Mr Giroud and Mr Tizaoualou. The Claimant in turn was managed by Mr Miah. The Claimant had a clean disciplinary record.[5]On 2 October 2017, the Claimant was invited to attend an investigation interview to consider two allegations. The first was that on Friday 29 September 2017 he acted in an inappropriate and unprofessional manner towards Minh Luong, an administrator, when at the end of a discussion he tore up his timesheet and walked away. The second allegation was that at 17:22 hours on Friday 29 September 2017: “you and one of your colleagues, Mr Tizaoualou, stole the content of the cleaning supplies cupboard. The removal of the Company products was captured on CCTV and clearly shows yourself and Krimou Tizaoualou loading a large black sack, believed to be containing company cleaning products, into the back of your car”.[6]This was a clear allegation of theft of cleaning supplies; the evidence in support being the CCTV footage showing a black bag being placed into the Claimant’s car.[7]The Claimant attended the investigation interview but made ‘no comment’ replies to all questions put to him by the investigating officer. This included questions about what had been inside the black bags seen being loaded into the car.[8]As a result of the failure of the Claimant to provide an adequate explanation or to cooperate with the investigation meeting, the Respondent decided to proceed to a disciplinary hearing. Mr Giroud and Mr Tizaoualou were also the subject of investigation and were disciplined in their turn also.[9]The allegations against the Claimant at the disciplinary hearing were set out in the letter of 13 October 2017. They were in the same terms as the investigation; specifically with regard to allegation 2 that the Claimant had stolen company products by removing them off site in a black sack without authorisation. The letter referred again to the CCTV footage as evidence upon which the Respondent was relying.[10]The disciplinary hearing took place on 25 October 2017. It was chaired by Mr Kevin Carter, the Centre Manager. The Claimant attended and on this occasion did participate constructively in the meeting. As he had not previously seen the CCTV footage, Mr Carter made arrangements for it to be shown during the course of the disciplinary hearing. That CCTV footage was shown to the Tribunal today. It shows the Claimant and Mr Tizaoualou at various times and places with a black bin bag. They can be seen putting the bin bag on a trolley, leaving the building and putting into the back of the Claimant’s car.[11]The Claimant denied that he had been rude to the administrator. When asked what was in the black bin bag which he put in the car, the Claimant said that it was a bag of onions and a five litre gloss paint tin which he had left in the store room and for which he had a receipt. The Claimant denied the allegation that he had stolen nine tubs of chemicals. Each tub weighs approximately five kilograms. The Claimant’s case then, and again today, was that he could not have carried such great weight in a single black bin bag and, if he was stealing, would not have taken such a circuitous route to his car knowing that he was being filmed on CCTV. The Claimant maintained that he had told a colleague, Mr Appiah, that he had put a bag in the storeroom and not to throw it away.[12]The hearing adjourned and Mr Carter undertook some further investigation. Ms Claxton, who had reported the loss of the cleaning materials, confirmed that she could not remember how many tubs had gone missing, there may have been six or eight tubs of chemicals there previously. Mr Appiah confirmed that at the end of September, the Claimant had told him that he had some belongings in the premises store and not to throw them away. He did not remember seeing any black sacks that looked like rubbish or any bags containing paint, painting equipment or onions.[13]By letter dated 30 October 2017, Mr Carter informed the Claimant of his summary dismissal. The letter sets out in detail the allegations of misconduct by reference to the examples of misconduct and gross misconduct set out in the Employee Handbook. These were:(i) rudeness to a colleague, supplier, client, customer or member of the general public;(ii) theft;(iii) any act or omission which leads to loss of company money/vehicles and equipment. The letter sets out in commendable detail the reasons for the decision to dismiss. Mr Carter found the first allegation proved as he preferred the evidence of Ms Luong over that of the Claimant.[14]In considering the second allegation, Mr Carter relied extensively upon the CCTV footage. He believed that it showed the Claimant and his colleague removing the black bin bag and putting it into the boot of the Claimant’s car. Mr Carter was not satisfied with the explanation provided by the Claimant, giving reasons why he did not accept that it could contain rubbish and/or why he did not accept the explanation that a colleague had brought the paint for Claimant. In particular, Mr Carter relied upon the Claimant’s failure to provide the invoice for the paint to verify his account. Mr Carter relied upon the fact that Mr Appiah did not recall what the Claimant had stored. It is clear from the letter that Mr Carter properly took into account the Claimant’s defence about the weight of the missing tubs and the route taken. Nevertheless, Mr Carter was not satisfied with the Claimant’s explanations and concluded that the allegation of theft was upheld. Given the severity of the misconduct and the nature of the allegation, he considered it an act of gross misconduct for which a sanction short of dismissal was not appropriate. The Claimant was summarily dismissed.[15]The Claimant appealed against his dismissal by a letter dated 6 November 2017. It was drafted on his behalf by Mr Thompson at the Whitechapel Legal Advice Clinic and set out the grounds of the Claimant’s appeal. It is materially inaccurate insofar as it asserts that it was Mr Tizaoualou who had brought the paint for the Claimant (not Mr Giroud as the Claimant stated at the appeal hearing). Essentially the grounds of appeal were that there had been insufficient evidence to believe that the Claimant had committed acts of misconduct and that the sanction was unduly harsh.[16]The appeal hearing took place on 16 November 2017, chaired by Mr Nangle. It was a detailed re-examination of the factual basis of the dismissal. In his role, Mr Nangle could confirm or overturn the decision to dismiss, or indeed to substitute an alternative sanction. Mr Nangle heard further explanation from the Claimant that he bag seen on CCTV contained paint and onions and considered the receipt which the Claimant had now provided. During the hearing, Mr Nangle asked the Claimant how the paint had got on site. The Claimant explained that Mr Giroud knew somebody who was selling paint at discount and so he asked him to get him some. The appeal notes record that the Claimant said: “Go get me stuff. Alias [that is Mr Giroud] doing extra time for no pay. Sometime the other staff say I got GP appointment at 4.15 – yes, but make up time. Ask a favour, I do it. Work with the school.”[17]That appears to be a reference to the Claimant’s belief that staff were permitted to arrange private appointments and tasks during working time so long as they made up their hours thereafter. Further, that Mr Giroud worked extra time for no additional pay. Neither were matters explored further in the appeal hearing. The Claimant accepted in the appeal hearing that it would have been at least a 40 minute round trip for Mr Giroud to buy the paint from the shop which was situated on the Mile End Road. When asked by Mr Nangle what outcome he sought, the Claimant made clear that he did not want his job back; he was only looking for compensation.[18]Following the appeal hearing, Mr Nangle carried out further investigation into the Claimant’s explanations. The bundle includes the timesheet for 21 September 2017, the day the paint was purchased, which shows that Mr Giroud worked from 3:45pm to 6:15pm. The paint receipt showed that it had been purchased at 17:41. Mr Giroud had not signed in or out during his shift and, on the face of it, appeared to have been paid for the entirety of the shift.[19]The appeal decision was sent to the Claimant by Mr Nangle on 25 November 2017. The letter set out the two allegations being considered and the conclusions in respect of each allegation. On the first allegation, Mr Nangle accepted that the Claimant’s conduct towards Ms Luong may have been misinterpreted. Mr Nangle confirmed in evidence today that he had not upheld the first allegation.[20]As for the second allegation, although rather confusingly referring to collusion, Mr Nangle found that the Claimant’s explanations had changed over the course of the disciplinary process and that the receipt for the paint was only provided on appeal, whereas it may have influenced the original decision if provided sooner. The letter went on to state that: “The mitigation that you supplied during the appeal hearing was fully investigated by the panel. As a result of this, the panel found that you had been fraudulently using the paid resources of Parkwood Leisure, namely staff on duty, to carry out your own personal shopping off the site. This action was confirmed by yourself and Mr Alias Giroud during the Appeal process. This not only put the staff member at risk, in that they would not have been covered by the Company insurance to carry out such activities, and resulted in breaches of the Health & Safety Policy and fraudulent claims for staff working at the site. These acts are considered gross misconduct. The disciplinary action against you will stand.”[21]That letter does not state in terms whether or not Mr Nangle found the second allegation was upheld or not. In his evidence today, Mr Nangle regarded the Claimant’s explanations as suspicious but confirmed that he had not upheld the second allegation as he regarded it as “not proven” but that if it were not for the fraudulent use of Mr Giroud to buy the paint, he would have reinstated the Claimant. In other words, the original allegation of theft of chemical materials was not upheld but rather Mr Nangle relied upon misconduct in that Mr Giroud bought the Claimant’s paint in working time. This alleged misconduct was not put to the Claimant in the appeal hearing nor was there any investigation as to whether, or to what extent, it was common practice for employees to undertake personal tasks in working time.[22]Mr Nangle heard the appeals against dismissal brought by Mr Tizaoualou and Mr Giroud. He reinstated both. Mr Nangle did not impose a disciplinary sanction against Mr Giroud for buying the paid as he accepted that Mr Giroud had been acting on his supervisor’s instructions.
Law
[23]The employer must show a potentially fair reason for dismissal within section 98 of the Employment Rights Act 1996. The Respondent relies upon conduct within section 98(2)(b). The legal issues in a conduct unfair dismissal case are well established in the case of BHS –v- Burchell [1978] IRLR 379, namely:(1) did the employer genuinely believe that the employee had committed the act of misconduct?(2) was such a belief held on reasonable grounds? And(3) at the stage at which it formed the belief on those grounds, had the employer carried as much investigation as was reasonable in all the circumstances of the case?[24]Section 98(4) of the Employment Rights Act 1996 requires the Tribunal to determine whether the Respondent acted reasonably or unreasonably in treating any such misconduct as sufficient reason for dismissal in accordance with the equity and substantial merits of the case. This will include consideration of whether or not a fair procedure has been adopted as well as questions of sanction.[25]In an unfair dismissal case it is not for the tribunal to decide whether or not the claimant is guilty or innocent of the alleged misconduct. Even if another employer, or indeed the tribunal, may well have concluded that there had been no misconduct or that it would have imposed a different sanction, the dismissal will be fair as long as the Burchell test is satisfied, a fair procedure is followed and dismissal falls within the range of reasonable responses (although these should not be regarded as ‘hurdles’ to be passed or failed).[26]The range of reasonable responses test or, to put it another way, the need to apply the objective standards of a reasonable employer, applies as much to the adequacy of an investigation as it does to other procedural and substantive aspects of the decision to dismiss, see Sainsbury’s Supermarkets Limited v Hitt [2002] IRLR 23, CA. The extent of a reasonable investigation may depend upon the gravity of the charges and their potential effects upon the employee. That is not determinative however, it will also depend amongst other things upon the extent to which the employee disputes the factual basis of the allegations and the nature of the defence advanced by the employee.[27]The test for the range of reasonable responses is not one of perversity but is to be assessed by the objective standards of the reasonable employer rather than by reference to the tribunal’s own subjective views, Post Office –v- Foley, HSBC Bank Plc –v- Madden [2000] IRLR 827, CA. There is often a range of disciplinary sanctions available to a reasonable employer. As long as dismissal falls within this range, the Tribunal must not substitute its own views for that of the employer, London Ambulance Service NHS Trust v Small [2009] IRLR 563. However, the range of reasonable responses test is not a test of irrationality; nor is it infinitely wide. It is important not to overlook s.98(4)(b) the provisions of which indicate that Parliament did not intend the Tribunal’s consideration of a conduct case to be a matter of procedural box ticking and it is entitled to find that dismissal was outside of the band of reasonable responses without being accused of placing itself in the position of the employer, Newbound –v- Thames Water Utilities Ltd [2015] IRLR 734, CA.[28]Relevant factors in the overall assessment of reasonableness under s.98(4) include, amongst other matters going to the equity of the case overall:28.1 The conduct of an employee in the course of a disciplinary process, including whether they admit wrongdoing and are contrite or whether they deny everything and go on the offensive.28.2 Disparity of treatment in truly parallel circumstances.28.3 A finding of gross misconduct does not automatically justify a finding that dismissal was within the range of reasonable responses, BritoBabapulle v Ealing Hospital NHS Trust [2013] IRLR 854.28.4 Mitigating factors, including length of service and disciplinary record, although these will not of themselves save an employee from dismissal in cases of serious misconduct, London Borough of Harrow v Cunningham [1996] IRLR 734.28.5 A fair procedure is an important part of the assessment of fairness under s.98(4). This requires that the allegation should be precisely framed and evidence confined to the particulars given in that allegation, Strouthos v London Underground Ltd [2004] IRLR 636, CA.[29]In deciding whether the dismissal was fair or unfair, the tribunal must consider the whole of the disciplinary process. If it finds that an early stage of the process was defective, the tribunal should consider the appeal and whether the overall procedure adopted was fair, see Taylor –v- OCS Group Limited [2006] IRLR 613, CA per Smith LJ at paragraph 47. That consideration of the procedure as a composite, both at dismissal and again at appeal, was confirmed in Perry v Imperial College Healthcare NHS Trust UKEAT/0473/10.[30]In Perry, the decision of the employer at the disciplinary hearing was fraud (receiving sick pay when fit enough to work elsewhere) but on appeal became failure to notify the employer of her ability to work elsewhere (depriving the employer of the ability to redeploy). The EAT was satisfied that this was a change in reason and that the Tribunal had to consider the fairness of the dismissal based upon the reason advanced and whether there was genuine belief on reasonable grounds after proper investigation at both stages. The decision of the manager at disciplinary was on a wholly different basis from that which emerged before the appellate body. It was unreasonable for the Respondent at the appellate level to have concluded that summary dismissal for gross misconduct was a warranted sanction for what by that stage had emerged as a minor deception if indeed that was what it was. Nevertheless it was satisfied that there was an issue of contributory fault; even if the Claimant acted in good faith, she had been “wrong-headed”.[31]The Tribunal must have regard to the ACAS Code of Practice which sets out basic principles of fairness to be adopted in disciplinary situations, promoting fairness and transparency for example in use of clear rules and procedures. This includes the requirement that employers carry out necessary investigations to establish the facts of the case.[32]If a dismissal is unfair due to procedural failings but the appropriate steps, if taken, would not have affected the outcome, this may be reflected in the compensatory award, Polkey v A E Dayton Services Ltd [1987] IRLR 503, HL. This may be done either by limiting the period for which a compensatory award is made or by applying a percentage reduction to reflect the possibility of a fair dismissal in any event. Polkey may also apply to the effect that a dismissal will be fair if it would have been utterly useless or futile for the employer to have carried out the omitted procedural steps.[33]A basic and/or compensatory award may be reduced pursuant to s.122(2) and s.123(6) ERA respectively. In Steen v ASP Packaging Ltd [2014] ICR 65, the EAT advised Tribunals to address(i) the relevant conduct;(ii) whether it was blameworthy;(iii) whether it caused or contributed to the dismissal (for the compensatory award) and(iv) to what extent should any award be reduced.
Conclusions
[34]As to the reason for dismissal, I am satisfied that Mr Carter held a genuine belief that the Claimant had committed an act of misconduct in respect of each of the allegations with which he was charged. Mr Carter was a credible and reliable witness and no alternative reason was put to him.[35]I also found Mr Nangle be a credible and reliable witness. He candidly accepted that his reason for dismissal was his belief that the Claimant should not have sent Mr Giroud to buy the paint for him in work time. This was not the original allegation relied upon by the Respondent and was unhelpful to the Respondent’s case, nevertheless it was indicative of the truthfulness of Mr Nangle’s evidence and I accept that this was the genuine reason for his decision.[36]Whereas Mr Carter believed that the Claimant had stolen the cleaning materials, Mr Nangle accepted that the theft could not be proved but instead found misconduct in sending a junior colleague off site for an extensive period of time in working hours to make a purchase on the Claimant’s behalf for his private benefit. Both are conduct for the purposes of s.98(2) ERA 1996. The difference in the nature of the conduct is relevant to s.98(4) but I am satisfied that the Respondent has discharged the burden and shown that the genuine reason for dismissal was conduct.[37]As for whether there was a reasonable belief on reasonable investigation, Mr Carter formed his belief on the first allegation by preferring the evidence of Ms Luong to that of the Claimant. On the second allegation, he relied upon the CCTV footage, the information that a valuable amount of cleaning materials had gone missing at the same time that the Claimant was seen on CCTV putting a black bag into his car. That was powerful primary evidence against the Claimant. The Respondent sought to investigate further by asking the Claimant to explain what was seen on CCTV footage. The Claimant chose not to do so and instead adopted a no comment approach. Mr Carter took this into account and decided that it adversely affected the credibility of the Claimant’s explanations at the disciplinary hearing. That is entirely reasonable on Mr Carter’s part. Mr Thompson submitted that the Claimant had a right to remain silent and that no adverse inference should be drawn. An internal disciplinary process is not a criminal trial. An employer is entitled to expect that if an employee has a simple and reasonable explanation for something which looks suspicious, that he will share it. The fact that the employee does not do so is grounds on which an employer can reasonably form the belief that that employee was not being honest and straightforward.[38]Mr Carter took into account the matters which the Claimant had raised, namely the weight of the bag and the circuitous route. He accepted that the exact number of stolen tubs of chemicals could not be known, but he believed that some had. Overall, the CCTV footage and the Claimant’s failure to provide an adequate explanation at the outset weighed against him. On the evidence available to him, I accept that Mr Carter formed a reasonable belief that the Claimant had stolen at least some of the tubs of chemicals.[39]By the conclusion of the appeal, Mr Nangle did not believe either that the Claimant had been rude to Ms Luong or had stolen the cleaning materials, instead that he had sent Mr Giroud in working hours to buy his paint. Mr Middleton submitted that these were not different allegations; the allegation of wrongdoing essentially remained the same, the Claimant had known the charges throughout and had the opportunity to state his case in the process of which he admitted a different act of wrongdoing arising out of the same facts. This wrongdoing, said Mr Middleton, was so obviously gross misconduct that Mr Nangle could reasonably rely upon the Claimant’s own admission and no further procedural safeguard was required.[40]I do not accept Mr Middleton’s submission. The nature of the allegations relied upon at dismissal and on appeal are substantively different: the first is theft of stock on 2 October 2017; the second is sending Mr Giroud to the shop on 21 September 2017. Whilst admitted by the Claimant, in the appeal hearing he also suggested that it was common for staff to undertake personal business in work hours and to make up the time later. The allegation was expressed as fraud. Fairness requires that an allegation upon which an employee is dismissed is precisely framed and evidence confined to the particulars given in that allegation, Strouthos. Here, however, there was no investigation of whether and to what extent the Claimant’s conduct was permissible or, just as importantly given that this was termed a fraud, that the Claimant knew that it was not. These were matters which required further investigation and a proper opportunity for the Claimant to explain himself. For these reasons, I am not satisfied that Mr Nangle’s belief was reasonable and based upon a reasonable investigation.[41]Looking at the decision to dismiss by Mr Carter, I would have found that dismissal fair in the circumstances of the case and following a fair procedure. The Claimant knew the allegation against him, there had been a proper investigation, there was a proper disciplinary hearing and the Claimant had a chance to explain himself. Following which Mr Carter had reasonably believed him to have committed a theft, misconduct which goes to the very heart of the relationship of trust and confidence. Whilst gross misconduct does not automatically merit summary dismissal, nor will length of service save an employee. Mr Carter acted consistently and dismissed all three employees he believed to be involved. Overall, dismissal for the theft was well within the range of reasonable responses. This is not to find that the Claimant did in fact steal the cleaning materials. That is not the role of the Tribunal in an unfair dismissal case. Rather, applying the Burchell test and s.98(4), Mr Carter’s decision to dismiss would have been fair.[42]The same cannot be said of the decision taken by Mr Nangle on appeal. The conduct for which the Claimant was dismissed changed from theft to misuse of a junior colleague’s working time. There was no investigation of whether this was common practice and permissible or whether at the very least the Claimant genuinely believed that to be so. Any reasonable employer would have carried out further investigation into whether other employees did take working time for personal tasks and make the time up later or whether Mr Giroud was not paid for the time spent at the shop. Both were raised at least in passing by the Claimant at the appeal hearing. Mr Nangle did not consider whether this single act was dishonest and a fraud as opposed to a mistake, misunderstanding or foolishness. This was an important distinction when considering the appropriate sanction for an employee with 10 years of otherwise unblemished service.[43]Looking at the disciplinary process overall, the Claimant was deprived of a fair appeal. Were it not for the change in allegation, he would have been reinstated. Whether or not this would then have led to further disciplinary action in respect of sending Mr Giroud to buy the point and, even if there were, whether the Claimant would have been dismissed fairly anyway are matters to be considered on remedy. This is not a case where it can properly said that it was utterly useless or futile to have carried out the additional procedural steps.[44]I am satisfied, however, that the Claimant conducted himself in a foolish way which contributed to the decision to dismiss him. Not, as Mr Middleton submitted, by the very storage of his paint at the school or its removal in a black bin bag; there was no evidence before me to suggest that this was not common practice or in any way wrong-headed. However, the Claimant’s conduct at the investigation interview was foolish. He had a simple explanation for what he was seen doing on the CCTV footage and he chose not to put it forward at the earliest opportunity. This contributed to the decision to dismiss as it led Mr Carter to form an adverse view of his credibility. Moreover, the delay in raising the defence adversely affected Mr Appiah’s recollection. Had the Claimant been straightforward from the outset, he may never have been dismissed at all. Secondly, I am satisfied that the Claimant’s conduct at the disciplinary hearing was foolish insofar as he failed to provide Mr Carter with the invoice proving the paint was purchased; that was a simple enough thing to do but he did not do so.[45]At the appeal stage I am satisfied that there was foolish conduct on the part of the Claimant insofar as he stated that he did not want reinstatement. An appeal is an internal process to overturn the dismissal and return to work. It is unusual for an employee to go through that process whilst explicitly stating that they do not want their job. A cynic might think that this simply going through the motions in order not to be criticised in subsequent Employment Tribunal proceedings.[46]Finally, and perhaps most significantly, the Claimant admitted using Mr Giroud to do his shopping in what can be seen from the timesheet was working time. Even if the Claimant’s evidence to this Tribunal is accepted, there is a significant difference in asking someone to go and get you a cup of tea or some cigarettes from the local shop and a 40 minute round trip to Mile End. Mr Tizaoualou’s witness statement at paragraph 4 was vague and consisted entirely of hearsay; he was not here to be crossexamined and I can attach no weight to it. The Employee Handbook includes definitions of misconduct, one of which is unauthorised absence. The Claimant acting as supervisor had authorised Mr Giroud to be absent to carry out a personal errand for him. That I consider to have been foolish and it caused or contributed directly to his dismissal due to the very dim view that Mr Nangle took of it. For those reasons therefore it is appropriate that there will be a deduction for contributory fault.
Remedy
[47]Having given Judgment on liability, I took evidence from the Claimant as to his efforts to find new employment and hear further submissions from the representatives.[48]On the termination of his employment, the Claimant contacted the jobcentre immediately. Due to his age and possible disadvantage on the labour market, he was advised to attend a specialist centre in Bromley-by-Bow. He did so regularly but still has found it difficult to find a job. The Claimant has limited his job searches to cleaning or work in a school environment. Given the Claimant’s experience of cleaning in schools for the previous 10 years, I do not consider it unreasonable for him to at least start by trying to find similar work.[49]The Claimant secured part-time work from 16 January 2018 earning a weekly sum of £42.87. Previously his weekly net earnings with the Respondent had been £201.25.[50]The Claimant continued to look for alternative employment. From 27 February 2018, he has been working 11 hours per week for Carnation Services, term time only, for pay of £100 per week. Since obtaining this second job, the Claimant has reduced but not entirely stopped his job searches and has applied for approximately 12 jobs over the past five months. In the meantime, he has applied to an agency for work as a teaching assistant. The Claimant has the qualifications for such work, which is better paid, and is confident that he will get work from September 2018.[51]In awarding compensation, I had regard to section 123 Employment Rights Act 1996: the loss must be sustained by the Claimant in consequence of the dismissal and must be attributable to the action taken by the employer. The unfairness on this case has been on appeal, not on the original decision. The Claimant’s position at appeal was clear: he did not wish to be reinstated. Even if the Claimant had succeeded on the appeal, as he ought to have done, he would have refused to return to work just as did Mr Giroud and Mr Tizaoualou. In the circumstances, it would not be just and equitable to award compensation on the basis of ongoing loss to date.[52]The appeal decision was communicated to the Claimant on 25 November 2017. If reinstated, he would have been entitled to pay for the interim period. He is likely to have faced further disciplinary action about his use of Mr Giroud. I find that the Claimant would then have taken a period of time to reflect upon whether or not he should return and would have taken advice from those assisting him now. The school would break up for Christmas in mid-December 2017. By the end of the December 2017, I find that that the Claimant would certainly have refused to be reinstated and the employment would have terminated. For those reasons, I award compensation only for the period from 1 November 2017 until 31 December 2017.[53]Given that compensation has been limited to two months and my finding that the Claimant would not have returned to work, I did not consider it appropriate to award any broader Polkey reduction. Even if there had been possible disciplinary action, given the points above about the Claimant considering his position and the school holidays, I am not satisfied that any further process could fairly have been concluded before 31 December 2017 in any event.[54]I have identified two types of contributory fault by the Claimant: conduct which contributed to the original dismissal and conduct which contributed to Mr Nangle’s decision. Given that the dismissal was unfair because of the latter decision, I am satisfied that the weight to be given to the earlier conduct is minimal. The most significant contributory fault was the Claimant’s admission at the appeal about using Mr Giroud to buy the paint in working hours. On his evidence and without evidence from an internal investigation, it is not clear that the Claimant did or should have known that what he was doing was wrong. Doing the best I can I am satisfied that the appropriate reduction for contributory fault is 25%.[55]I applied that reduction to both the basic and the compensatory award. Although not necessarily required, the reduction to each will usually be the same unless there is a good reason to do otherwise, see Charles Robertson (Development) Ltd v White [1995] ICR 349. I have heard no submissions to suggest that separate deductions would be appropriate in this case.[56]Doing the maths, it is agreed that prior to the deductions the basic award is the sum of £3,000.96. With the 25% reduction, that leaves a basic award of £2,250.72. As for compensatory award, I have awarded the Claimant the period from 1 November to 31 December 2017. This is nine weeks’ at a full weekly net loss of £201.25, giving £1,811.25. After the deduction of 25%, the compensatory award is £1,358.44. Having regard to the Claimant’s age, previous length of service and precarious position in the labour market, I award the Claimant of statutory protection in the sum of £750.[57]The recoupment provisions will apply. The protected period is 1 November to 31 December 2017. The prescribe element is £1,358.44. The total monetary award is £4,359.16. The excess of the monetary award over the prescribed element therefore is £3,072.00.