Mr Thileephan Sri Kathirgama Sampanther v Excellent Entertainment Ltd: 3200748/2020
EMPLOYMENT TRIBUNALS
Case No 3200748/2020
Between
Mr Thileephan Sri Kathirgama SampantherClaimantExcellent Entertainment LtdRespondent
Before
Employment Judge HousegoIn person for claimantNot represented for respondentDate 30 October 2020
JUDGMENT
[1]The Claimant was unfairly dismissed by the Respondent.[2]The Respondent is ordered to pay to the Claimant the sum of £18,268.85.
REASONS
[1]The Respondent applied for an adjournment of the hearing: “From: Anthony Thompson [mailto (email address given)] Sent: 29 October 2020 17:08 To: EastLondonET <eastlondon@Justice.gov.uk> Cc: (Claimant’s email address) Subject: Mr T Sri Kathirgama Sampanther v. Excellent Entertainment Limited - case number: 3200748/2020 - URGENT EXTREMELY URGENT Dear Sirs, We refer to the hearing listed for 30 October 2020. The Respondent requests a postponement of the hearing tomorrow in order to compile its evidence. The Respondent’s main witness is unable to provide a witness statement at the present time. In the circumstances, no one will be attending the hearing on the Respondent’s behalf. Please can you put this email before an employment judge as a matter of urgency. Yours faithfully, Anthony Thompson Solicitor Head of Employment Law Lyca Group of Companies”[2]I refused this request for a number of reasons: 2.1. The request was made only after 5pm on the day before the hearing. 2.2. There was no reason given as to why the main witness was unable to provide a witness statement, nor was he identified, nor was it indicated when such a statement was likely to be made available. 2.3. This was a CVP (virtual) hearing, and it would have been simple for the application to have been made by joining the hearing, and to give full reasons. 2.4. There was no evidence that the Respondent had done anything in connection with the claim subsequent to filing the ET3 and grounds of resistance on 28 August 2020. 2.5. It was not suggested that the Covid-19 pandemic had hindered the Respondent in any way. 2.6. It is now approaching a year since the Claimant was dismissed.
Summary
[3]The Respondent says that it dismissed the Claimant for gross misconduct. It says that he contacted a competitor and offered to sell to them its customer database. The Claimant denies that he did this, and says that they had no good reason to think that he did.
Evidence
[4]I heard oral evidence from the Claimant. The Respondent did not attend, and so I did not hear oral evidence from Marc Payne, Group Head of Fraud, Revenue Assurance and DPO, who investigated, or from Alex Yohanan, the Respondent’s UK HR Manager, who suspended and then dismissed the Claimant, or from Paul Mallett, Global Head of Talent Acquisition & HR, who heard the Claimant’s appeal.[5]The Respondent had not provided any documents to the Claimant or to the Tribunal. The Claimant provided the letters of suspension and of dismissal, and a 2 line email dismissing his appeal, and other papers about the effect on the Claimant of his dismissal.
Law
[6]No sophisticated legal analysis is required. The reason put forward is conduct which is a potentially fair reason for dismissal (S98(2) of the Employment Rights Act (“the Act”)). Was that the reason? If yes, did the Respondent have a genuine belief on reasonable grounds of misconduct by the Claimant? If yes, was it gross misconduct (or misconduct justifying dismissal)? Was dismissal within the range of responses of a reasonable employer? Was the dismissal procedurally fair? If not what were the chances of dismissal if there was a fair procedure? If there was an unfair dismissal did the claimant cause or contribute to his dismissal by his conduct?[7]In deciding fairness Section 98 (4) of the Act provides “…. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and –(b) shall be determined in accordance with equity and the substantial merits of the case”. There is no burden of proof, for it is an assessment of the fairness of the actions of the employer. It is not for the Tribunal to substitute its own view for that of the employer. The test in Burchell (reference below) is whether the employer had a genuine belief in misconduct on reasonable grounds, after proper investigation.[8]I have also considered section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular section 207A(2), and the ACAS Code of Practice 1 on Disciplinary and Grievance Procedures (“the ACAS Code”).[9]Compensation for unfair dismissal is dealt with in sections 118 to 126 inclusive of the Act. Potential reductions to the basic award are dealt with in section 122. Section 122(2) provides: "Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) 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 the amount accordingly.”[10]The compensatory award is dealt with in section 123. Under section 123(1) "the amount of the compensatory award shall be such amount as the 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".[11]Potential reductions to the compensatory award are dealt with in section 123. Section 123(6) provides: "where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[12]There is provision for increase in compensation of up to 25% if the Acas code is not followed by an employer which unfairly dismisses an employee.[13]I have considered the cases of Post Office v Foley, HSBC Bank Plc (formerly Midland Bank plc) v Madden [2000] IRLR 827 CA; British Home Stores Limited v Burchell [1980] ICR 303 EAT; Iceland Frozen Foods Limited v Jones [1982] IRLR 439 EAT; Sarkar v West London Mental Health NHS Trust [2010] IRLR 508 CA; Sainsburys Supermarkets Ltd. v Hitt [2002] EWCA Civ 1588; Software 2000 Ltd v. Andrews & Ors [2007] UKEAT 0533_06_2601; and Polkey v A E Dayton Services Ltd [1988] ICR 142 HL. The range of responses of the employer is not infinitely wide but is subject to S98(4): Newbound v Thames Water Utilities [2015] EWCA Civ 677, paragraph 61. It is unfair to dismiss automatically by reason of gross misconduct: Department for Work and Pensions v Mughal (Unfair Dismissal: Reasonableness of dismissal) [2016] UKEAT 0343_15_1406. Mezey v South West London and St George's Mental Health NHS Trust [2007] EWCA Civ 106: suspension is not a neutral act (paragraphs 11-13). I have considered the guidance in Software 2000 Ltd v. Andrews & Ors [2007] UKEAT 0533_06_2601 about remedy.[14]The reason given by the Respondent was misconduct which is a potentially fair reason for dismissal. The first question is whether that was the reason. If it was the reason the issue is whether it was fair, or not. Those questions are determined by the findings of fact.[15]If the reason is shown to be misconduct, the starting point for the issue of fairness is the words of section 98(4) themselves. In applying that subsection the Tribunal must consider the reasonableness of the employer’s conduct, not simply whether it considers the dismissal to be fair. In judging the reasonableness of the dismissal the Tribunal must not substitute its own view of the right course to adopt for that of the employer. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might take one view, and another might quite reasonably take another. The function of the Tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.[16]The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances. A helpful approach in most cases of conduct dismissal is to identify three elements (as to the first of which the burden is on the employer; as to the second and third, the burden is neutral):(i) that the employer did believe the employee to have been guilty of misconduct;(ii) that the employer had in mind reasonable grounds on which to sustain that belief; and(iii) that the employer, at the stage (or any rate the final stage) at which it formed that belief on those grounds, had carried out as much investigation as was reasonable in the circumstances of the case. The band of reasonable responses test applies as much to the question of whether the investigation was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss.
Findings of fact
[17]The Respondent’s grounds of resistance describe the company and the Claimant’s role within it, as follows: “The Respondent is a premier, digital ethnic entertainment provider. Its set top box connects via the internet to over 450 live channels and movies in over 25 languages. At all material times, the Claimant was a Network Engineer. His role was managing the Lyca TV subscriber base, overlooking the apps development team in Sri Lanka for Apple and Android, ensuring the streaming of the content on the Lyca TV from various content suppliers and managing the website for Lyca TV.”[18]Mr Sampanther started with the company on 13 March 2016.[19]The Respondent was in discussion with YUPPTV for the sale to it of LycaTV. In November 2019 Mr Sampanther was asked by the CEO of LycaTV, Sunil Rohra, to assemble a database of customers. He had not the authority to do so himself, and got in touch with IT in Sri Lanka to obtain the data, remodelled it and provided it to Sohil Rohra and others as requested.[20]The Respondent’s case is that: “On 10 November 2019, the Respondent was notified by the CEO of YUPPTV that on 07 November 2019 at 2:44 pm he had received a LinkedIn message from the Claimant’s account offering the Respondent’s customer database for sale. The message read, ‘RE: LycaTV Hi sir, are you going to take LycaTV customer base (sic)? how much you are going to offer if it’s coming from me? for entire customer base (sic)?’ At the time the message was sent, the Respondent and YUPPTV were conducting negotiations about the potential sale and purchase of LycaTV. The Claimant was aware that the potential sale was in the offing.”[21]On 11 November 2019 Alexander Yohanan, HR manager, suspended Mr Sampanther, delivering to him by hand a letter, stating that this was for alleged dishonesty and breach of confidentiality.[22]By a letter bearing the date of 26 November 2019 Mr Yohanan dismissed Mr Sampanther. The letter refers to a meeting held on 27th November 2019, and so the letter appears to have been written before the meeting took place. The letter is reproduced below. Mr Sampanther’s evidence is that Mr Yohanan had the letter in his hand during that meeting, which lasted only 5-10 minutes. He said early on that he had already come to a conclusion, but after listening to Mr Sampanther Mr Yohanan said that he would discuss the matter with management and let him know. The letter arrived on 29 November 2019, with no further communication from the Respondent.[23]On 02 December 2019 Mr Sampanther appealed, giving full reasons set out below, and a hearing date was set for 09 December 2019:[24]After that meeting, which lasted only 5-10 minutes, Mr Sampanther chased up a decision, and on 02 January 2020 Mr Mallet emailed Mr Sampanther: “Following on from our meeting on 9th December 2019. Having taken time to review your case, I can confirm that my decision is to uphold your termination. I am sorry that this is not the outcome you were looking for, but it draws to a close the appeal process. Bets (sic) regards, Paul”[25]There was no investigation of any sort, save that Mr Mallet told Mr Sampanther that he had viewed the cctv of Mr Sampanther’s workstation for 07 November 2019 and that it was not clear.[26]All Mr Sampanther was shown by way of evidence was at the dismissal meeting. It was the text message set out above, on a mobile phone.[27]Mr Sampanther’s request to check up on the IP address that was used to set up the LinkedIn account was not followed up. Mr Sampanther showed his own LinkedIn account page to Mr Yohanan, which clearly showed that he had multiple unanswered notifications. He thus demonstrated that he was not a regular or frequent LinkedIn user. The message was not sent from that LinkedIn account but from another with aspects of the Claimant’s name (“Thileephan Sam”).[28]The man under threat of redundancy who was suspected by Mr Sampanther of engineering his departure to create space for him to remain was subsequently dismissed by reason of redundancy.
Conclusions
[29]The Respondent clearly had reason to suspect Mr Sampanther. There is no reason to think that they did not get a message from the CEO of YUPPTV. There is no reason for them not to accept that to be genuine. The message above was sent from a LinkedIn account which cast suspicion on Mr Sampanther. Mr Sampanther was in possession of the database apparently being offered for sale.[30]However, the Respondent made no effort to check that this was in fact Mr Sampanther’s doing. It gave no thought to the obvious point that this was not sent from Mr Sampanther’s long standing and little used LinkedIn account. If he was going to set up a new LinkedIn account to approach the CEO of YUPPTV there would be every reason to use an alias. No effort was made to find out when and where the account was set up, or the IP address from which it was sent. Anyone trying to sell such a database would be highly likely to hide his or her identity. Using Mr Sampanther’s name is a simple and obvious way of doing so. Mr Sampanther had (on instruction) emailed the database to a variety of people within the Respondent, any one of whom could have done this, as could someone in the Sri Lanka office. The message does not read as a first message, but no enquiry was made about any previous message.[31]The person who suspended Mr Sampanther dismissed him, having had typed up the dismissal letter the day before the hearing. He had made his mind up in advance. While he said that he would investigate what Mr Sampanther was able to say in a very short meeting either he did not do so, or he did not share it with Mr Sampanther.[32]The person who took the appeal took only 5-10 minutes to hear it. He said that he had viewed the cctv but that it was not clear. He took over a month (29 November 2019 to 02 January 2020) to dismiss the, giving no indication of reasons why, or what information he had considered.[33]The procedure was unfair, for these reasons. It is impossible to consider what might have happened had a fair procedure been followed, and I make no Polkey reduction for that reason. I make no reduction for contributory conduct for want of any evidence that it was Mr Sampanther who sent that message. The message reads as if it was not the first, but no enquiry was made of the CEO of YUPPTV about any other message.
Remedy
[34]The basic award is based on work from 13 March 2016 – 29 November 2019 = 3 full years. He was under 41 at the date of dismissal, and so the basic award is 3 weeks’ pay. He earned £25,000 a year, which is £480.77 a week. 3 x £480.77 = £1442.31.[35]Mr Sampanther obtained alternative employment starting on 05 August 2020, at higher pay. He had no expense in obtaining that employment which was through personal contacts. He did not claim any state benefit. He did some minicab driving in that time, but he had done that while employed and it does not reduce his loss. There is nothing from the Respondent to indicate that he might have been made redundant or furloughed between 29 November 2019 and 05 August 2020 (he was not at risk of redundancy himself). His loss is therefore his lost earnings for that period at an annual salary of £25,000. That is 33 weeks. £25,000 divided by 52 x 33 = £15,865.[36]To this I add the notional loss for loss of statutory rights of 2 weeks’ pay, which is £961.54.[37]The total compensatory award is therefore £16,826.54.[38]The total amount I order the Respondent to pay to the Claimant is the total of £1442.31 + £16,826.54, which is £18,268.85.[39]I do not add an uplift as the procedure was followed, even if unfairly.[40]I order the compensatory award gross, and it is for the Claimant to ensure that the appropriate income tax and national insurance is paid on the compensatory award.