Mr S V Howell v Barminster Investments Ltd T/a Barminster Property Services: 3302198/2024
JUDGMENT
The claim for unfair dismissal is dismissed.REASONS
[1]The Respondent is a company that does property management. The Claimant was employed by the Respondent as an Administration Manager and Sales and Lettings Negotiator from 24 October 2016 until 12 February 2024, when he was summarily dismissed.[2]ACAS Conciliation took place between 31 January 2024 and 5 February 2024.[3]On 20 February 2024 the Claimant brought a claim for unfair dismissal.[4]In its response, the Respondent said the reason for the Claimant’s dismissal was incompetence and that the Claimant’s appointment was terminated when it was discovered that a number of tenancy agreements which should have been renewed had in fact expired.[5]However, in a letter to the Claimant dated 20 September 2024, Mr Durojaiye, sole director and owner of the Respondent, stated that while the Claimant had 1 of 6 underperformed for years, the real reason he had been dismissed arose out of events that happened on 12 January 2024, which had culminated in the Claimant calling Mr Durojaiye a liar then taking the office mobile phone and resetting it to factory settings, thereby deleting all the information on the phone.Evidence
[6]The Respondent is a very small company. At the time of the Claimant’s dismissal, the only employees were the Claimant and Mr Durojaiye. Although Mr Durojaiye had concerns about the Claimant’s performance, he and the Claimant had a friendly working relationship which included buying each other gifts on birthdays and at Christmas and the Claimant attending Mr Durojaiye’s birthday party.[7]Further, Mr Durojaiye stated, and I accept, that there were times when the finances of the Respondent were such that he had to raise funds specifically to pay the Claimant’s salary and keep employing him.[8]On the afternoon of 12 January 2024 the Claimant left the office to attend an appointment. Prior to him leaving, both he and Mr Durojaiye were on friendly terms.[9]While the Claimant was out Mr Durojaiye saw an email that had been sent to him from a client Landlord, JG, in respect of a property in Hampden Lane, N17. The gist of JG’s email was that he was not prepared to agree to another tenancy agreement being offered to the tenants and was considering moving the management of the flat to another company. He said there had been constant problems with the tenants during the first 18 months of the tenure, including late payment of rent, dumping items outside the flat and acting in a confrontational manner.[10]His email continued “At one point it was explained to me that all these problems came about because the reference check process had not actually been completed for these tenants, due to the relevant Barminster employee’s hasty move to Manchester at the time. So clearly the correct processes were never actually completed with the consequences that followed…”.[11]Mr Durojaiye considered the only person who could have said such a thing to JG was the Claimant, as he was the only other employee in the company (the reference in the email to the employee who had moved to Manchester was a reference to Mr Durojaiye’s son, who had worked in the business for a short time but no longer did so). Mr Durojaiye was very angry that the Claimant could have said something so disloyal and potentially damaging to the Respondent.[12]When the Claimant returned to the office Mr Durojaiye challenged the Claimant about the email.[13]Pausing here, the Claimant provided what purports to be transcript of the subsequent conversation. He said that he had been able to access the office CCTV from an App on his personal mobile phone and had downloaded it onto his laptop and made a transcript. However, he was unable to provide the original CCTV recording because in August 2024 his laptop had been stolen by his landlady. 2 of 6[14]Mr Aimufua disputed that the Claimant could have accessed the CCTV footage and that the transcript was genuine.[15]While I cannot say if the Claimant accessed the CCTV in the way he says he did, I consider the transcript is at least based on genuine CCTV footage because it does not read like a fabricated or scripted conversation and has the “ring of truth” about it. However, without the original recording, I cannot be satisfied the transcript is accurate, and moreover it became evident during the hearing that in any event it is incomplete and stops before the end of the conversation. When the Claimant was asked why he hadn’t transcribed the whole conversation, he said that he hadn’t had the time to do so.[16]In any event it is plain, both from the transcript and the evidence of Mr Durojaiye and the Claimant, that when Mr Durojaiye challenged the Claimant about telling JG that tenants had been put into his property without the reference process having been completed, the Claimant denied he had said any such thing. Mr Durojaiye said he must have done, because he was the only person who could have said it, and that the Claimant had been trying to say to JG that it wasn’t his (the Claimant’s fault) that there had been problems with the tenants. When the Claimant kept denying it, Mr Durojaiye repeatedly told the Claimant to call JG and ask him to confirm what he (the Claimant had said). He then showed the Claimant the email.[17]The transcript concludes with Mr Durojaiye saying to the Claimant “it was you that told him all the problems would not have come about if the right checks were made. So that means that we just put someone in a landlord’s property without doing the right checks. So what we are doing is fraud. The tenants have not been properly vetted…Have a read through of that statement…”[18]Although the transcript stops very shortly afterwards, the parties agreed the conversation continued and became more heated.[19]Mr Durojaiye’s evidence was that he again asked the Claimant to call JG, that the Claimant called him “a bloody liar” and said that he “was full of lies” and “always lying”. Mr Durojaiye said he then walked up to the Claimant to retrieve the business mobile phone, and the Claimant picked it up from the desk and returned it to factory settings, thereby deleting all the emails, contacts and WhatsApp messages etc. Mr Durojaiye said he could not work with somebody who spoke to him and behaved like that, and he dismissed the Claimant. The Claimant then left.[20]The next day the Claimant came back to collect some of his things from the office and brought a friend, who pleaded on the Claimant’s behalf for the Claimant to have his job back. Mr Durojaiye said that if the Claimant had apologized for his behaviour the previous day he probably would have agreed. However, the Claimant did not apologize. On 14th January 2024 the Claimant collected the last of his belongings from the office and he and Mr Durojaiye shook hands and wished each other well.[21]The Claimant’s evidence was not very different. He accepted that he said to Mr Durojaiye “you are lying”, but did not accept he said anything else. He accepted that he returned the office phone to factory settings but couldn’t remember at what point between 12-14 January 2024 he had done this. He said he had 3 of 6 returned the phone to factory settings because he had personal information as well as work information on the office phone and he didn’t have time to delete his personal information before returning the phone. He said he knew this wouldn’t prejudice the Respondent because the relevant information was also on the office computers.[22]Although, in my judgment, little turns on the minor differences between the parties’ accounts, where there are differences, I prefer Mr Durojaiye’s account. I found the Claimant’s evidence to be vague and evasive. Further I consider it suspicious that the transcript provided stops before the most relevant part of the conversation and do not accept the Claimant’s explanation that he did not have time to transcribe the latter part. He must have accessed the CCTV relatively soon after his dismissal and said his laptop was not stolen until August 2024. In addition, I would expect him to remember at what point in the chronology he returned the phone to factory settings and agree with Mr Aimufua that his motivation for doing so must either have been to delete matters which should not have been on his phone or as an act of spite against Mr Durojaiye.Conclusions
[23]The reason relied upon by the Respondent for the dismissal is conduct, namely the Claimant calling Mr Durojaiye a liar and returning the office phone to its factory settings in the argument on 12 January 2024. Further, despite the original reasons given for the dismissal in the response, it is clear from the evidence that this was indeed the reason for the dismissal.[24]Accordingly, since conduct is potentially a fair reason for dismissal within the meaning of s.98(1)(a) of the Employment Rights Act 1996, the question is whether the dismissal is fair or unfair within the meaning of s.98(4), that is to say, whether in the circumstances, and taking into account the size and administrative resources of the Respondent, the Respondent acted reasonably or unreasonably in treating that conduct as a sufficient reason for dismissing the Claimant.[25]In addressing this question it is necessary to consider whether the Respondent had a genuine belief in the Claimant’s guilt, whether there were reasonable grounds for that belief, and whether the outcome of dismissal was reasonable in all the circumstances.[26]In this respect, there is no doubt the Respondent had a genuine belief in the Claimant’s guilt as regards calling Mr Durojaiye a liar and returning the office phone to factory settings, since the altercation took place directly between the two of them. As regards the context of the altercation, namely the email from JG, it is also clear that Mr Durojaiye had a genuine belief the Claimant had told JG that tenants had been put into his property without the reference process having been completed.[27]As regards whether the Respondent’s belief was based on reasonable grounds, again it is plain the Respondent had reasonable grounds for the belief that the Claimant had called Mr Durojaiye a liar and returned the office phone to factory 4 of 6 settings, which I accept was the central reason for the dismissal. In any event, I also consider the Respondent had reasonable grounds for believing the Claimant had told JG the tenants had been put into his property without the reference process having been completed. Since the Claimant was the only other employee of the business there was nobody else it could have been, so the only other possibility was that JG had made up the matter in his email. In his evidence before the Tribunal the Claimant suggested JG had made up the allegation as part of a negotiating tactic. However, I consider such a suggestion fanciful, given, in particular, the detail provided by JG (namely that he had been told the check hadn’t been completed because the employee in question had moved to Manchester).[28]The next question is whether the dismissal can be fair notwithstanding the fact that no disciplinary procedure was followed. Although, failure to follow a disciplinary procedure normally results in a dismissal being found to be unfair, in exceptional circumstances such as where a disciplinary procedure would be futile, a dismissal may be found to be fair even if no such procedure is followed.[29]I consider that this is one of those exceptional cases.[30]First, the matters which led to the Claimant’s dismissal took place entirely between himself and Mr Durojaiye and there were no other witnesses to consider.[31]Secondly, the evidence was that in fact there was a relatively long conversation between them which lasted between 30 minutes and an hour during which the context of the dispute – namely JG’s email – was fully discussed.[32]Thirdly, the only potentially relevant document was the email from JG which in any event Mr Durojaiye showed the Claimant during that conversation.[33]Fourthly, there were no employees in the company who could have conducted a disciplinary procedure other than Mr Durojaiye himself. It is possible that had such a hearing been convened this would have given the parties the opportunity to calm down and reflect, however Mr Durojaiye effectively accorded the Claimant that opportunity in any event the following day, when the Claimant attended the office and a friend pleaded on his behalf to have his job back. Notably, Mr Durojaiye said, and I accept, that if the Claimant had taken that opportunity to apologize he probably would have given him his job back.[34]The final question is whether dismissal was within the band of reasonable responses open to a reasonable employer in the circumstances. In this respect I consider that Mr Durojaiye was reasonably entitled to consider that the Claimant’s actions amounted to gross misconduct, which had broken the relationship of trust and confidence between them, and to dismiss him. The Claimant was the Respondent’s only employee (other than Mr Durojaiye) and it was essential that he and Mr Durojaiye had a good working relationship. However, the Claimant had called Mr Durojaiye a liar in no uncertain terms and then, in what appeared to be an act of spite, had returned the office phone to factory settings, which at the very least would have caused Mr Durojaiye 5 of 6 significant inconvenience. Further, the argument had happened in circumstances where Mr Durojaiye reasonably believed the Claimant had made a potentially highly damaging statement to a client landlord.[35]Accordingly, for all these reasons the claim of unfair dismissal is dismissed.Conclusions
[1]The Claimant says that new evidence is available, namely that the CCTV footage of the conversation between himself and Patrick Durojaiye which took place on 12 January 2024 has been retrieved. However, he does not say how he has been able to retrieve that footage given that at the hearing he said he was unable to do so because it was on his laptop which had been stolen by his landlady in August 2024. I am therefore not satisfied that new evidence is available which was not, or could not have been, available to the Claimant at the date of the hearing.[2]The Claimant also says that he did not transcribe the entire recorded conversation prior to the hearing because he had to spend 35 hrs per week looking for work and attending training courses. I am not satisfied is a sufficiently good reason for not doing so. As stated in the judgment the Claimant must have accessed the CCTV footage soon after his dismissal, and his laptop was not stolen (he said) until August 2024. Further he plainly thought the conversation was relevant to his claim before the Respondent changed its pleaded reason for dismissing him as he had already transcribed part of it.[3]In any event, as recorded in the judgment, the parties agreed at the hearing that the transcript was incomplete and that the conversation between them continued and became more heated after the transcript finishes. Moreover, again as recorded in the judgment, there was in fact little difference in the parties’ evidence at the hearing. The Claimant agreed that he had said to Mr Durojaiye that he was lying (although he denied calling him a “bloody liar”) and he agreed he had returned the office phone to factory settings. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 3302198/2024[4]The Claimant says it is reasonable that he doesn’t remember at what point between 12 and 14 January 2024 he returned the phone to factory settings, however this matter was addressed in the judgment. While in normal circumstances somebody might not remember the date and time of changing their phone settings, I considered it reasonable to expect the Claimant to remember whether he changed the office phone to factory settings in the heat of the altercation with Mr Durojiaiye, and immediately before his dismissal, or at a later date. I considered all the evidence before the Tribunal and preferred that of Mr Durojaiye.[5]Finally, all of the Claimant’s evidence, including his witness statement (dated 24 October 2024) was before the Tribunal and taken into account, including paragraphs 31 and 36 of that witness statement. It is true that there was not an agreed bundle of documents before the Tribunal, however the Claimant had lodged a separate bundle of documents which included his witness statement, all the pages of his P45, his P60 and his Dismissal Response Letter.[6]There is therefore no reasonable prospect of the original decision being varied or revoked in the interests of justice.