Mr S O’Brien v Pride Scaffolding Ltd: 3200798/2020

EMPLOYMENT TRIBUNALS

Case No 3200798/2020

Between

Mr S O’ BrienClaimant

Pride Scaffolding Ltd DEFAULT JUDGMENT Employment Tribunals Rules of Procedure 2013 – Rule 21 1. The Respondent has failed to enter a response to the Claimant’s claims and Judgment is issued in his favour in respect of his unfair dismissal, unpaid notice pay and unpaid holiday pay claims pursuant to rule 21 of the Employment Tribunal Rules of Procedure 2013. 2. A remedy hearing, listed for 1 hour will take place on 23 February 2021 at 10.00am.Respondent

Before

Employment Judge Burgher

In person for claimant

Not represented for respondent

Date 10 February 2021

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 21

[1]The Respondent has failed to enter a response to the Claimant’s claims and Judgment is issued in his favour in respect of his unfair dismissal, unpaid notice pay and unpaid holiday pay claims pursuant to rule 21 of the Employment Tribunal Rules of Procedure 2013.

[2]A remedy hearing, listed for 1 hour will take place on 23 February 2021 at 10.00am. Employment Judge Burgher 10 February 2021 Case Number: 3200798/2020 A 1 EMPLOYMENT TRIBUNALS Claimant: Mr S O’Brien Respondent: Pride Scaffolding Ltd Heard at: East London Hearing Centre (by telephone) On: 23 February 2021 Before: Employment Judge Burgher Appearances For the Claimant: In person For the Respondent: Did not attend This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was A by telephone conference call. A face to face hearing was not held because the relevant matters could be determined in a remote hearing. REMEDY JUDGMENT

[1]The Respondent is ordered to pay the Claimant the total sum of £26,321.18 in respect of his claims. This consists of:1.1 £24,238.48 for unfair dismissal

1.2 £2.082.70 for wrongful dismissal.

[2]The recoupment provisions apply Prescribed period 17/01/2020 to 23/02/2021 Compensation cap not applied Total award £26,321.18 Prescribed element £17,549.44 Balance £8,771.74 Case Number: 3200798/2020 A 2

REASONS

Issues

[1]A default judgment in respect of the Claimant’s claims was issued on 11 February 2021.

[2]The remedy hearing took place and the Claimant gave sworn evidence under affirmation. He clarified that he had been paid his all his holiday pay entitlements.

[3]The Claimant’s schedule of loss was assessed following evidence. The Claimant did not establish that he was entitled to a 3% annual pay rise from 2017 given the absence of any written support for the assertion or any grievance relating to the failure to increase salary during the relevant period.

[4]The Claimant’s claim for Christmas bonus was assessed on the basis of the sums he stated he received in previous years. The Claimant also had private access to a company van and a sum of £1000 is awarded as compensation in this regard.

[5]The Claimant secured alternative employment on 30 September 2020. He is earning £45 per month less when pension deductions are accounted for.

[6]Having considered the evidence, the Claimant is entitled to the following sums given the relevant calculations.

[1]Details Date of birth of claimant 22/10/1958 Date started employment 07/04/2014 Effective Date of Termination 12/12/2019 Period of continuous service (years) 5 Age at Effective Date of Termination 61 Remedy hearing date 23/02/2021 Date by which employer should no longer be liable 30/09/2021 Contractual notice period (weeks) 5 Statutory notice period (weeks) 5 Net weekly pay at EDT £416.54 Gross weekly pay at EDT £537.00 Gross annual pay at EDT £27,924.00

[2]Basic award Basic award Number of qualifying weeks (7.5) x Gross weekly pay (525.00) £3,937.50 Total basic award £3,937.50 Case Number: 3200798/2020 A 3

[3]Damages for wrongful dismissal Loss of earnings Damages period (5) x Net weekly pay (416.54) £2,082.70 Total damages £2,082.70

[4]Compensatory award (immediate loss) Loss of net earnings Number of weeks (57.7) x Net weekly pay (416.54) £24,034.36 Plus loss of statutory rights £350.00 Plus loss of commission and/or bonus £1,275.00 Less new employment from 30/09/20 -7,759.92 Plus Company Car 1,000.00 Total compensation (immediate loss) 18,899.44

[5]Compensatory award (future loss) Loss of future earnings Number of weeks (31.3) x Net Weekly pay (416.54) 13,037.70 Less other earnings 23/02/21 to 30/09/2021 -11,636.16 Total compensation (future loss) 1,401.54

[6]Total compensatory award Total Compensatory award £20,300.98

[7]Summary totals Basic award 3,937.50 Wrongful dismissal 2,082.70 Compensation award including statutory rights 20,300.98 Total 26,321.18 AFTER COMPENSATION CAP OF £27,924.00 (GROSS ANNUAL PAY) £26,321.18 7 The recoupment provisions apply to the award. Prescribed period 17/01/2020 to 23/02/2021 Compensation cap not applied Total award £26,321.18 Prescribed element £17,549.44 Case Number: 3200798/2020 A 4 Balance £8,771.74 Employment Judge Burgher Date: 23 February 2021 Case Number: 3200798/2020 A 1 EMPLOYMENT TRIBUNALS Claimant: Mr S O’Brien Respondent: Pride Scaffolding Ltd Heard at: East London Hearing Centre On: 14 January 2022 Before: Employment Judge Burgher Appearances For the Claimant: In person For the Respondent: Did not attend This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was A by telephone conference call. A face to face hearing was not held because the relevant matters could be determined in a remote hearing. RECONSIDERATION REMEDY JUDGMENT 1. The Respondent is ordered to pay the Claimant the total sum of £23,284.54 in respect of his claims. This consists of:1.1 £21,201.84 for unfair dismissal

1.2 £2,082.70 for wrongful dismissal. 2. The recoupment provisions apply Prescribed period 17/01/2020 to 23/02/2021 Compensation cap not applied Total award £23,284.54 Prescribed element £17,549.44 Balance £ 5,735.10 Case Number: 3200798/2020 A 2 CALCULATION BREAKDOWN

[1]Details Date of birth of claimant 22/10/1958 Date started employment 07/01/2014 Effective Date of Termination 12/12/2019 Period of continuous service (years) 5 Age at Effective Date of Termination 61 Date new equivalent job started or expected to start 29/07/2020 Remedy hearing date 14/01/2022 Date by which employer should no longer be liable 29/07/2020 Contractual notice period (weeks) 5 Statutory notice period (weeks) 5 Net weekly pay at EDT 416.54 Gross weekly pay at EDT 537.00 Gross annual pay at EDT 27,924.00

[2]Basic award Basic award Number of qualifying weeks (7.5) x Gross weekly pay (525.00) 3,937.50 Total basic award 3,937.50

[3]Damages for wrongful dismissal Loss of earnings Damages period (5) x Net weekly pay (416.54) 2,082.70 Total damages 2,082.70

[4]Compensatory award (immediate loss) Loss of net earnings Number of weeks (27.9) x Net weekly pay (416.54) 11,621.47 Plus loss of statutory rights 350.00 Plus loss of commission and/or bonus 1,000.00 Total compensation (immediate loss) 12,971.47

[5]Adjustments to total compensatory award Plus failure by employer to follow statutory procedures @ 25% 3,242.87 Compensatory award before adjustments 12,971.47 Case Number: 3200798/2020 A 3 Total adjustments to the compensatory award 3,242.87 Compensatory award after adjustments 16,214.34

[6]Failure to provide written particulars Number of weeks (2) x Gross weekly pay (525.00) 1,050.00 Total 1,050.00

[7]Summary totals Basic award 3,937.50 Wrongful dismissal 2,082.70 Compensation award including statutory rights 17,264.34 Total 23,284.54 AFTER COMPENSATION CAP OF £27,924.00 (GROSS ANNUAL PAY) 23,284.54

[8]The recoupment provisions apply to the award. Prescribed period 17/01/2020 to 12/02/2022 Compensation cap not applied Total award £23,284.54 Prescribed element £17,549.44 Balance £5735.10 Employment Judge Burgher 14 January 2022 Case Number: 3200798/2020 THE EMPLOYMENT TRIBUNALS Claimant: Mr S O’Brien Respondent: Pride Scaffolding Ltd NOTICE OF CORRECTION EMPLOYMENT TRIBUNALS RULES OF PROCEDURE 2013 Under the provisions of Rule 69 I hereby correct the clerical mistakes in the Remedy Reconsideration Judgment herein sent to the parties on 17 January 2021 by replacing ‘Did not attend’ with Mr M Winthrop, Solicitor for Respondent’s attendance and replacing telephone conference call with Cloud Video Platform in the preamble. Employment Judge Burgher Dated: 25 January 2022 Case Number: 3200798/2020 1 EMPLOYMENT TRIBUNALS Claimant: Mr S O’Brien Respondent: Pride Scaffolding Ltd Heard at: East London Hearing Centre On: 14 January 2022 Before: Employment Judge Burgher Appearances For the Claimant: In person For the Respondent: Mr M Winthrop, Solicitor RECONSIDERATION REMEDY JUDGMENT having been sent to the parties on 17 January 2022 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013.

[1]At the outset of the hearing the following issues were identified as relevant for consideration of remedy:1.1 Whether the Claimant has taken reasonable steps to mitigate his loss

1.2 Whether there should be any reduction to compensation for Polkey

1.3 Whether there should be any adjustment to compensation for failing to comply with the ACAS code on disciplinary and dismissal procedures

1.4 Whether there should be any reduction to the award for conduct

1.5 Whether there should be a separate award for failure to provide written particulars. Case Number: 3200798/2020 2

Evidence

[2]The Claimant gave evidence on his own behalf. The Respondent called:2.1 Mr Terry Fletcher, Director;

2.2 Ms Jacqueline Sheekey, Operations Manager; and

2.3 Mr Darren Page, Transport Manager.

[3]All witnesses gave evidence under oath and were subject to cross examination and questions from the Tribunal.

[4]I was also referred to relevant pages in an agreed hearing bundle consisting of 154 pages

Facts

[5]I have found the following facts from the evidence.

[6]The Respondent is a scaffolding company operating in London and the South East on a variety of public and private building contracts. The Respondent employed a total of 25 staff of which 7 are HGV drivers, 14 scaffolders and 4 administrative staff.

[7]By letter dated 3 April 2014 the Claimant was provided an offer letter as a Contracts Supervisor. The letter outlined the main terms of employment and stated that detailed terms would be sent in a contract of employment to follow. The offer letter did not provide the start date of continuous employment or any provisions relating to the sick pay, pension who notice requirements. No detailed contract of employment was sent to the Claimant.

[8]The Claimant accepted that he had no right for personal use of company vehicle and this was the exception rather than the rule. I accept that the Claimant received bonus in 2018 and that everyone received a bonus of varying amounts.

[9]The Claimant commenced employment with the Respondent as a Contracts Supervisor on the 7 April 2014. During his evidence the Claimant emphasised that he was employed as a Contract Supervisor not a Transport Manager as contended for by Mr Fletcher. I accept Mr Fletcher's evidence that after a few months of the Claimant’s employment the Claimant assumed duties of Transport manager and was given a pay increase to reflect this. There was no written contractual record of this change. As Transport Manager, the Claimant’s duties involved visiting and inspection of sites to erect scaffolds, liaising with contractors and operatives, keeping a record of all transport undertaken, including downloading all TACO readings every three months and the rest of the record keeping needed for the Respondent’s 8 HGVs.

[10]Having considered the evidence I conclude that the Claimant was given a written warning on 16th of July 2018 for failing to ensure returning of job sheets and for leaving office early. The Claimant apologised to Mr Fletcher, he lived in Stevenage and sought to avoid the traffic commuting home from his place of work in North East London. Case Number: 3200798/2020 3

[11]The Claimant received a further written warning on 19th of February 2019 again for leaving early without completing his daily tasks.

[12]I've been referred to evidence that the Claimant was not effective or efficient in undertaking his tasks. the Respondent had to engage an external contractor to assist the Claimant to manage any inspections by VOSA or haulage accrediting organisations. Following his dismissal, Mr Page the new transport manager discovered some serious shortcomings in the Claimant’s paperwork. Reference was made to the failure to download the tachograph of driver Mr Lock between 17 June 2019 and 28 November 2019 (drivers tachographs should have been recorded been at least every 3 months) and the failure to record Post MOT Inspections for the Respondent’s HGV at least every 10 weeks as required.

[13]Mr Fletcher gave evidence that the Claimant was informed that he was required to attend an operator licences awareness training course which was booked on the 13 November 2019 the course being scheduled for the 12 December 2019. On the evidence before me I conclude that the course was booked for Mr Fletcher to attend not the Claimant. in any event I accept the Claimants evidence that he attended the office on the 11 December 2019 and Mr Fletcher told him to attend the training course the next day. the Claimant was concerned the training course which ran from 9 till 5 was outside his working hours and was South of London which would have taken him far longer to have commuted to from his home. Later, that evening, the Claimant sent a text to Mr Fletcher saying he would be unable to attend the training course the following day As he had a family event that evening, the Claimant suggested that he attended the next training course nearer to his home in Peterborough on 17 January 2020.

[14]On the 12 November 2019 the Claimant attended for work, Mr Fletcher raised the cost of the Claimant not attending the course, the Claimant again offered to go on an alternative course in January 2022 and offered to pay for his attendance himself. Mr Fletcher told the Claimant that he should just call it a day, remove his belongings and leave the keys and the company phone on the desk.

[15]No notice was given, no disciplinary process was followed, and no right of appeal was offered to the Claimant.

[16]I accept that the Claimant looked for alternative work and was unable to secure alternative employment due to limited prospects in the job market as a result of the Covid-19 lockdown. The Claimant Secured alternative work, albeit at a lesser salary, on the 30 September 2020

Law

[17]I considered sections 120, 122 and 123 of the Employment Rights Act 1996 in respect of remedy.

[18]I considered the parties helpful written and oral submissions. The Claimant was ably assisted in his written submissions with the assistance of the Stevenage CAB. Case Number: 3200798/2020 4

Conclusions

[19]In view of my findings of fact, the law and having considered the parties submissions my conclusions are as follows.

[20]The Claimant has taken reasonable steps to mitigate his loss.

[21]I do not conclude that a fair process would have resulted in the Claimant’s dismissal at all and make no Polkey reduction in this regard. The Claimant was not at fault for declining to go to a last minute course south of London. His explanation and proposal to do the course in January 2020 was entirely reasonable. No disciplinary, never mind dismissal ought to have ensued in these circumstances.

[22]However, I conclude that the Respondent’s business required someone who was far more efficient and effective as a Transport Manager than the Claimant. Training was one element of this, as was the Claimant’s attitude. Given the serious shortcomings subsequently discovered in the Claimant’s paperwork I conclude that the Respondent would have lost trust in continuing to retain the Claimant as a Transport Manager by 29 July 2020 having regard to opportunity to improve and any necessary training effect to be assessed. The Claimant’s losses are limited to this date.

[23]I award the Claimant the sum of £1000 in respect of bonus for 2019 but I make no award for loss of company vehicle.

[24]There was a wholescale failure by the Respondent to engage with the ACAS disciplinary and dismissal process. Whilst the Respondent is a small employer, I do not consider that this excuses their total disregard of good industrial practice. I make a 25% uplift.

[25]I do not conclude that there should be any reduction to the award for the Claimant’s conduct. The Claimant was not at fault for declining to go to a last minute course south of London. His explanation and proposal to do the course in January 2020 was entirely reasonable. No disciplinary, never mind dismissal ought to have ensued in these circumstances.

[26]The Respondent failed to provide the Claimant with written particulars of employment. The was an offer letter with some main terms but not subsequent contract of employment or contractual updated recording the Claimant’s Transport Manager role. I award 2 weeks pay in this regard.

[27]Schedule A below sets out the award calculation breakdown for the Claimant’s wrongful and unfair dismissal claims.

[28]The Respondent is therefore ordered to pay the Claimant the total sum of £23,284.54 in respect of his claims. This consists of:28.1 £21,201.84 for unfair dismissal

28.2 £2,082.70 for wrongful dismissal. Case Number: 3200798/2020 5

[29]The recoupment provisions apply Prescribed period 17/01/2020 to 23/02/2021 Compensation cap not applied Total award £23,284.54 Prescribed element £17,549.44 Balance £5735.10 SCHEDULE A - CALCULATION BREAKDOWN

Conclusions

[1]Details Date of birth of Claimant 22/10/1958 Date started employment 07/01/2014 Effective Date of Termination 12/12/2019 Period of continuous service (years) 5 Age at Effective Date of Termination 61 Date new equivalent job started or expected to start 29/07/2020 Remedy hearing date 14/01/2022 Date by which employer should no longer be liable 29/07/2020 Contractual notice period (weeks) 5 Statutory notice period (weeks) 5 Net weekly pay at EDT 416.54 Gross weekly pay at EDT 537.00 Gross annual pay at EDT 27,924.00

[2]Basic award Basic award Number of qualifying weeks (7.5) x Gross weekly pay (525.00) 3,937.50 Total basic award 3,937.50

[3]Damages for wrongful dismissal Loss of earnings Damages period (5) x Net weekly pay (416.54) 2,082.70 Total damages 2,082.70

[4]Compensatory award (immediate loss) Loss of net earnings Number of weeks (27.9) x Net weekly pay (416.54) 11,621.47 Case Number: 3200798/2020 6 Plus loss of statutory rights 350.00 Plus loss of commission and/or bonus 1,000.00 Total compensation (immediate loss) 12,971.47

[5]Adjustments to total compensatory award Plus failure by employer to follow statutory procedures @ 25% 3,242.87 Compensatory award before adjustments 12,971.47 Total adjustments to the compensatory award 3,242.87 Compensatory award after adjustments 16,214.34

[6]Failure to provide written particulars Number of weeks (2) x Gross weekly pay (525.00) 1,050.00 Total 1,050.00