Mr J Attree v London Borough of Havering Council: 3204630/2021
JUDGMENT
[1]The claims for failure to pay holiday pay and notice pay are dismissed on withdrawal[2]The claim for unfair dismissal fails and is dismissed. JUDGMENT having been sent to the parties on 18 January 2022, and reasons having been requested on 2 November 2025 in accordance with a direction from the President of the EAT dated 23 October 2025REASONS
[1]By a claim form issued on 4 June 2021, following early conciliation between 31 March and 12 May 2021, the claimant brought a complaint of unfair dismissal.[2]He was employed by the respondent, London Borough of Havering, from 1 April 2010 until 5 January 2021 as a customer service advisor. He was dismissed for gross misconduct.[3]There was a hearing before Employment Judge Gardiner on 11 November 2021, which was due to be the final hearing, however, that hearing was not effective. Employment Judge Gardiner set out the issues that had been raised in respect of the fairness of the dismissal in his case management discussion summary and made case management orders which were sent to the parties on 15 November 2021.[4]It was not in dispute that the claimant was dismissed. The questions for the tribunal were therefore what was the reason for dismissal; whether that reason was a potentially fair reason; whether the respondent had a genuine belief in the reason at the time it dismissed the claimant and that belief was based on reasonable grounds following such investigation as was reasonable in all the circumstances; the tribunal also is to consider whether dismissal was a fair sanction open to the employer and the test for fairness is that set out in section 98, subsection 4 of the Employment Rights Act 1996. The questions the tribunal has to consider are set out in the case of British Home Stores Ltd v Birchall [1978] IRLR 379.[5]At the outset of the hearing, I explained to the parties that the question for me is not whether I would have dismissed the claimant, nor whether I would have considered him to have been guilty of gross misconduct. I am not to substitute my view for that of the respondent. I am to examine the respondent's decision and assess it against that of the reasonable employer taking into account the range of reasonable responses open to a reasonable employer.[6]I heard evidence from two witnesses for the respondent: Kevin Armstrong, who made the decision to dismiss and John Green, who heard the appeal. I also heard evidence from Mr Attree Senior, his wife Mrs Attree and from the claimant Mr J Attree, their son.[7]I was provided with a bundle of documents which had been the subject of some discussion before Employment Judge Gardiner. The bundle that I had was a slimmed down version where documents that were solely relevant to two allegations that were not upheld against the claimant had been removed. The pagination had not been amended and pagination of witness statements did not necessarily marry up to the pages in the bundle. However, the parties were agreed that they wished to go ahead with the bundle in the state that it was.[8]Having heard evidence from both parties, I was provided with a written submissions from Mr Moher and Mr Attree Senior, both of whom also addressed me orally.[9]Following my deliberations, my findings are as follows.[10]In respect of the reason for the dismissal, I find that the reason was misconduct. This was the reason relied on by the respondent and that is a potentially fair reason under Section 98(2) of the Employment Rights Act. The question then for me was whether there was a genuine belief in that misconduct at the time the claimant was dismissed. I am satisfied from Mr Armstrong's evidence that he had a genuine belief in the misconduct of the claimant. I also, however, have to decide whether that was a reasonable belief, and whether that was based on reasonable grounds following such investigation as was reasonable in the circumstances. The reasonableness of that belief was disputed by the claimant and particular criticism was made in respect of the investigation and alleged shortcomings in the procedural aspects of the disciplinary process.[11]The issues were identified at points 1 to 14 at paragraph 5 of Employment Judge Gardiner’s summary of the discussion at the hearing in November 2021; those issues were canvassed in the evidence. As far as they are relevant to the questions that I have to decide, I set out my findings below.[12]Mr Armstrong found on the balance of probability, that of the three allegations the claimant was faced with, the first two allegations in respect of the fraud or attempted fraud around the question of right to buy, were neither proven nor unproven, and so he did not uphold those allegations in the disciplinary process. However, in respect of the third allegation in respect of obtaining a resident’s parking permit at an address at which the claimant was not residing, he was satisfied that that allegation had been made out, and that the claimant was guilty of gross misconduct. He found that the claimant’s action was dishonest.[13]The reasons for that decision was set out in his decision letter and repeated in his witness statement which is at pages 64 to 76 of the witness statement bundle. Mr Armstrong also submitted a supplemental statement in respect of further evidence that he had obtained in advance of the hearing before the tribunal, but which was not before him at the time of the decision to dismiss. There was much discussion as to whether that further evidence should have been available to him at the time. Mr Armstrong’s evidence was that the further evidence would have made no difference to his decision, which was based on the resident’s permit application that he had seen; in fact the additional evidence to his mind explained why there was no earlier application to be found on the council's records. There was a dispute as to whether the period of time for which a resident’s permit had been issued was from 2016, as well as 2017 and 2018, or not; his investigation brought to light that in fact the controlled parking zone was only introduced in 2017.[14]In the course of his argument on behalf of his son, Mr Attree Senior submitted that the main focus of the investigation was not into the parking permit, but was primarily focused on the right to buy allegations and the parking permit was not properly considered; it was not considered to be so important and that explains the lack of proper investigation.[15]The detail of the investigation was before me. I had the statements presented to the investigating officer, Steve Caton and his disciplinary report, which was provided to Mr Armstrong. Mr Armstrong had accepted he had evidence in front of him some of which was relevant only to the first two allegations in addition to some of the evidence that was in the tribunal’s bundle, which only related to the third allegation.[16]The investigatory report starts at page 74 of the tribunal's bundle. Included in the report was reference to a summary of the witness statement of Rebecca Conran, which was to the effect that on a visit to the claimant to investigate the allegation in respect of the right to buy and whether he was resident at one address or another, she and also her fellow investigator, Mr Wren, had seen the claimant's car, a black Ford Fiesta, outside the property, displaying a Haringey Council resident’s parking permit, which expired on 30 October 2019. This was in relation to a visit in August 2020. Rebecca Conran stated that Mr Wren mentioned this to the claimant in the course of their discussion and that the claimant's alleged response, according to them, was recorded at page 85 of the documents.[17]The veracity of their account of that conversation was in dispute before me. The information in the disciplinary investigation report included a summary from Mr Wren of his investigation as to the car's registration, which he stated was registered with DVLA at 11 Lake Rise, the same address where the resident’s parking permit was also provided.[18]At page 88 of the bundle, Mr Caton records that he had been provided with a copy of the application for the parking permit and six letters, one for each year from 2015 to 2020, issued by Havering Council to Mrs Attree at 11 Lake Rise, all of which state the claimant is a non-dependent living at her property, this was concluded in MrCaton’s report, which was before Mr Armstrong.[19]In his interview, the claimant confirmed he did not live at the property. This was recorded at page 89. The interview records the claimant was asked if it was correct that the officer, that is Ms Conran, had a photograph of Havering Council resident’s parking permit in his car, which expired on 30 October 2019, and his answer was recorded as “Yes” [at page 92 of the bundle]. This was subsequently disputed before me.[20]At page 92, Mr Caton records his account of what the claimant said at that interview and in his post-interview submission in respect of the permit, that is a reference to supplemental information provided by the claimant after the interview. This can be seen as recorded against the questions: 35, 36, 37, 38, and 39, which relate to the parking permit.[21]In the interview record the reference to when the first parking permit was issued came from the claimant, he gave an account whereby he referred to the introduction of the CBZ in 2016: it was not in dispute, or a contentious issue, during the disciplinary investigation or the disciplinary hearing, which year the CBZ was introduced and therefore for how many years the claimant had had a permit. It only became clearer after the date of dismissal.[22]The application for a parking permit made in 2017, was before Mr Armstrong and [at page 153 to 154 of the bundle], as were examples of visitors permits which it was accepted were in the form of scratchcards. Mr Armstrong also had the record of the claimant’s interview, the notes of the post-interview submissions as well as the clarification the claimant provided in his email to Mr Caton on 4 November 2020, where the claimant suggested he was offered a permit in 2016 and no form was submitted, he simply accepted it. He repeats that explanation recorded at page 205.[23]In advance of the disciplinary hearing, the claimant submitted a document in response to the disciplinary pack which he had received; it was accepted that he only received the full pack in hard copy on the Friday before the hearing, which took place on the Monday. The letter notifying him of the hearing was sent on 8 December, but the pack was attached to an email, and the content was too large, and he could not access that document. It was originally in a zip file, which he was unable to receive, and a number of attempts were made to break that down into smaller parts and send it to him in separate emails. It was not disputed that he had not had the whole pack until the Friday before the hearing.[24]However, the claimant was able to produce a document in advance of the disciplinary hearing, which is at page 233 of the bundle, setting out his response to a number of the points raised in the disciplinary pack. At page 237 to 239, he addresses the allegation in respect of the resident’s parking permit and at 240 is the attached image of his mother's residence permit.[25]His answer to the third allegation (in respect of the resident permit) is found at pages 238 to 239, in which he says it was a genuine mistake, and he also says he was paying for a permit to park, and no wrongdoing was intended.[26]At the disciplinary hearing itself, the claimant raised that on seeing the application that had been provided which he had signed in 2017, he said that he had in fact applied for a visitor's permit and not a resident’s permit. He said that this had come back to him when he had seen the document, saying he had not seen that when he was interviewed by Steve Caton and that was why he had not mentioned this when he was interviewed by him.[27]The differences between a resident’s permit and a visitor's permit were explored with the claimant at the disciplinary hearing and he was given an opportunity to respond. The notes at page 245 record that Mr Armstrong went through the allegation and the difference between a resident’s permit and visitor’s permit, the process of the application, and how the claimant said he had gone about it.[28]In the disciplinary hearing, the claimant when asked, accepted that he had displayed the resident’s permit in his car and when asked why he had not questioned it, he explained he just accepted what he was given. It was disputed, before me that he had ever displayed the permit, but it appears that before Mr Armstrong he accepted that he had done so.[29]Mr Armstrong set out in his decision letter, [page 263 to 271], his findings in respect of the three allegations. As already indicated, he did not find the first two allegations either proven or unproven. In respect of the third allegation, he addressed that allegation and his findings at page 266 to 271. He did not accept the claimant’s explanation in respect of the visitors/resident’s permit and which the claimant thought he was applying for, and sets out his reasons for not accepting his explanation at [267]. He also set out the duration over which the permit had been applied for [at 269], his understanding at the time was that it was for 3 years. I am satisfied that was not an issue that was in dispute, and therefore not one which needed further investigation at the time. I find that the date had in fact first come from the claimant and that when Mr Armstrong said in fact it was only since 2017 this made no difference to his decision; rather this made more sense to him in light of the date of introduction of the CPZ. I find that was a reasonable position for him to take. It was not in dispute at the disciplinary hearing that the claimant had used the permit that was provided, so that issue did not require further investigation.[30]The procedure in respect of the IRO was not raised directly with Armstrong that was raised before Mr Green. I am satisfied that Mr Armstrong made the decision having considered the relevant information provided to him in the disciplinary investigation and also having considered the claimant's answers and responses in the investigation, and in his subsequent clarification to Mr Caton, and before him at the disciplinary hearing.[31]I am satisfied that Mr Armstrong had reasonable grounds for reaching the decision and that his belief was therefore based on reasonable grounds. Whether the investigation was reasonable was addressed further at the appeal but based on the matters that were raised before him, there was no reason for him not to consider the investigation a reasonable one. I will come on to the issue of the appeal after I have dealt with the sanction.[32]Mr Armstrong decided that the appropriate sanction was dismissal. Given that he had found gross misconduct and that the claimant had acted dishonestly, that is something that must be within the range of reasonable responses open to a reasonable employer. I am not able to substitute my own view for that of the respondent.[33]In terms of the appeal, it is noted that the claimant said he felt he had had a fair hearing at the disciplinary hearing until he saw the outcome when he felt that he had not in fact been listened to. In the appeal procedural failings were raised, as was the severity of the sanction and the weight of the evidence. In fact, it was submitted that the finding was against the weight of the evidence.[34]The basis of appeal included an annotated form of the decision letter setting out the Claimant’s criticisms of it, a document setting out the policies and procedures and pointing to failures or alleged failures to follow them and an annotated note of the disciplinary hearing.[35]Mr Green heard the appeal on 22 March 2021. His witness statement is at pages 23 to 36 of the witness statement bundle. He sets out what information/ documents were before him, what he considered to be the arguments which were raised in respect of the appeal, and his conclusions.[36]Mr Green confirmed that he had not asked for any further investigation to be carried out before deciding the appeal; he was satisfied on the balance of probability that the claimant had made an application for a resident’s permit and not a visitor's permit and that the finding of Mr Armstrong was clear that in any event only the resident could apply for a visitor’s permit.[37]The procedural points raised before Mr Green were considered by him and he considered the point raised about the IRO, the delay in receiving the outcome letter and the delay or length of the investigation. He set out his conclusions in respect of each of those.[38]In terms of the delay in receipt of the outcome letter, Mr Armstrong explained at the appeal that it was beyond the five days he had hoped, or the policy provided for, and that this due to the Christmas period. Mr Green found the three months that it took to investigate and then hold the disciplinary hearing was not unreasonable given the serious nature of the allegations and the complexity of the allegations in respect of the right to buy issue and investigations having to be carried out through third parties, including banks and others.[39]The accuracy of Mr Caton's account was also raised at the appeal. Mr Green was satisfied that what was being challenged in respect of Mr Caton's account of the evidence did not materially affect the allegations before him in respect of the parking permit. Mr Green was satisfied with the level of investigation and with the procedure followed.[40]The minutes of the appeal hearing at page 427 to 434 show that the claimant, or his father on his behalf, addressed the issue in respect of Mr Caton and also in respect of procedure and made a submission in respect of denial of natural justice. Those issues were clearly ventilated as can be seen at page 428, 429 and 430. As noted above, part of the delay in sending the disciplinary hearing outcome letter was explained by Mr Armstrong as being due to the Christmas period. Mr Green rejected the suggestion that the fault in fact lay with the parking department and not with the claimant in respect of the issuing of the wrong type of permit.[41]Mr Green set out his findings in his appeal outcome letter, [page 437 to 440] which was sent to the claimant on 29 March 2021. Firstly, he addressed the question of sanction, he acknowledged the claimant's length of service and previously unblemished record but given the finding of gross misconduct, he upheld the sanction. He found that the new evidence supplied at the appeal before him did not affect the decision and the disciplinary finding on the weight of the evidence. Mr Green did not accept the claimant's criticisms of the evidence, or his version of events. He did not find the procedural errors to be matters that went to the substance of the decision; or that had in fact prejudiced the claimant in meeting the allegations or making his defence. He set out that he was satisfied that the decision had been reached in accordance with the council’s policy and that it should be upheld.[42]I have considered all the criticisms of the council raised before me by Mr Attree Senior and I am satisfied that the matters which were raised by the claimant, or on his behalf, at each stage were considered once they were raised, and that the responses given by the respondent were ones which were reasonably open to them. Again, I am not able to substitute my own decision for that of the council.[43]I am satisfied the decision fell within the band of reasonable responses open to a reasonable employer. It is not for me to substitute my view, and therefore, I find that the dismissal was fair, and, as already indicated, that includes the sanction: on a finding of dishonesty/ gross misconduct, dismissal must be a sanction that is reasonably open to a reasonable employer.[44]The claim for unfair dismissal therefore fails and is dismissed.