Mr K Hussain v FedEx Express UK Transportation Ltd: 3302561/2023
EMPLOYMENT TRIBUNALS
Case No 3302561/2023
Between
Mr K HussainClaimantFedEx Express UK Transportation LtdRespondent
Before
Employment Judge DobbieIn person for claimantMr S Gill (instructed by Counsel) for respondentDate 25 April 2025
JUDGMENT
[1]The Claimant’s claim for unfair dismissal is not well founded and is dismissed;[2]The Claimant’s claim for holiday pay is upheld in the agreed sum of £10.00;[3]The Claimant’s claim for unlawful deduction from wages during his period of suspension is dismissed; and[4]The Claimant’s claim for wrongful dismissal for notice pay succeeds and will be assessed at a subsequent hearing if necessary. JUDGMENT having been sent to the parties on 28 November 2024 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:
REASONS
[1]The Respondent is a well-known transport company and is part of the Global FedEx Group, collecting and delivering parcels throughout the United Kingdon. The Claimant is a former Hub-Level One Operative based at the Respondent’s Marston Gate hub. He brings claims for:(a) Unfair dismissal;(b) Wrongful dismissal (notice pay);(c) Unlawful deduction from wages for pay during a suspension period; and(d) Holiday pay.[2]The Claimant commenced ACAS Early Conciliation on 13 February 2023 and the certificate was issued on 28 February 2023 [1]. The claim form was presented on 15 March 2023 [2]. PROCEDURE / EVIDENCE[3]I took time to explain the process to the Claimant at the outset of the hearing. I also informed the parties that they should take me to every document they wished me to read and that I would not guarantee I would read something unless they directed me to it either during questions or during closing arguments.[4]The evidence in the case comprised:(a) An agreed bundle with an index, running to 337 pages;(b) A witness bundle with four written statements from; (1) John Morris; (2) Julie Blauch; (3) Rock Sherman; and (4) The Claimant.(c) R1 – Mr Morris’ drawings on a floorplan (which was created during the course of evidence and admitted into the evidence, having been photocopied for all parties to keep a record);(d) C1 and C2 - the Claimant’s drawings on two floorplans (which were created during the course of evidence and admitted into the evidence in the case, having been photocopied for all parties to keep a record);(e) R2 – a holiday record document admitted by agreement on the final morning of the hearing. The Claimant agreed to its admission but disputed its accuracy; and(f) Five clips of CCTV from the Respondent’s systems in respect of 8 May 2022.[5]I heard live evidence from the following people in the following order:(a) John Morris;(b) Julie Blauch;(c) Rock Sherman (by video); and(d) The Claimant[6]The video evidence was viewed by all parties jointly with both the Claimant and Respondent highlighting such parts of it to me as they wished as we watched it. Some clips were watched numerous times and as many times as either party wished until both parties felt they had highlighted all that they wished to do so.
Issues
[7]The issues had been case managed and were recorded as being: 1. Unfair dismissal1.1 Had the Respondent proven on balance of probabilities that the sole or principal reason for dismissing the Claimant was a potentially fair reason under ERA? The Respondent says it was gross misconduct, hence a potentially fair reason under the Employment Rights Act 1996 (ERA), namely a conduct reason falling within s.98(2) ERA.1.2 If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the Claimant? The Tribunal will usually decide, in particular, whether:1.2.1 Did the Respondent genuinely believe the Claimant had committed the act of wrongdoing?1.2.2 there were reasonable grounds for that belief?;1.2.3 at the time the belief was formed the respondent had carried out a reasonable investigation?;1.2.4 the Respondent otherwise acted in a procedurally fair manner?1.3 Did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?1.4 If the dismissal is held to be unfair, the Tribunal must have regard to the principles in Polkey and AE Dayton Services Limited.1.5 In addition, the Respondent contends that if the Tribunal considers the dismissal to be unfair, it would be just and equitable to reduce the Claimant’s compensatory and basic awards under sections 122 and 123 ERA to reflect the contribution of his conduct to the dismissal. 2. Wrongful dismissal / Notice pay2.1 What was the Claimant’s contractual notice period?2.2 Was the Claimant paid for his notice period?2.3 Was the claimant guilty of gross misconduct? / did he do something so serious that the Respondent was entitled to dismiss without notice? 3. Holiday Pay (Working Time Regulations 1998)3.1 What was the claimant’s leave year?3.2 How much of the leave year had passed when the Claimant’s employment ended?3.3 How much leave had accrued for the year by that date?3.4 How much paid leave had the claimant taken in the year?3.5 How many days remain unpaid?3.6 What is the relevant daily rate of pay? 4. Unauthorised deductions4.1 Were the wages paid to the claimant between his suspension on less than the wages s/he should have been paid?4.2 Was the Claimant entitled to a pay rise between his suspension on 18 July 2022 and his dismissal?4.3 If so, was he paid in accordance with any such pay rise?4.4 If not, how much should the Claimant be paid? LAW Unfair Dismissal
LAW
[8]Section 98 of the Employment Rights Act 1996, states: 98.— General. (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. … (4) Where the employer has fulfilled the requirements of subsection (1), 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.[9]In cases of ordinary unfair dismissal, where the employee has at least two years’ service, the Respondent carries burden of proof in showing the sole or principal reason for dismissal. Then there is a neutral burden on whether the dismissal for that reason was fair or unfair in all the circumstances (Boys and Girls Welfare Society v McDonald [1996] IRLR 129).[10]The reason for dismissal is the “set of facts known to the employer, … or of beliefs held by him, which [caused] him to dismiss the employee”, per Cairns LJ in Abernethy v Mott Hay and Anderson [1974] IRLR 213, approved in W Devis & Sons Ltd v Atkins [1977] IRLR 314.[11]I reminded myself that, following Sainsbury’s Supermarket Ltd v Hitt [2003] IRLR 23 and Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, the tribunal is not asked to consider what it might regard as fair, but what a reasonable employer might consider in same circumstances. This is known as the “range of reasonable responses” test.[12]In British Leyland (UK) Ltd v Swift 1981 IRLR 91, CA, the Court of Appeal stated: ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.’[13]The Respondent states that the reason for dismissal in this case is conduct. If that is correct, the test set out in BHS v Burchell [1980] ICR 303 applies. This requires the Tribunal to address the questions at paragraph 1.2 of the List of Issues above. Law on wrongful dismissal[14]Wrongful dismissal and unfair dismissal are entirely different claims. Wrongful dismissal gives rise to a common law action for breach of contract. By contrast, unfair dismissal solely exists under the statute (the ERA). In a wrongful dismissal claim, the tribunal is concerned with whether a breach of contract in fact occurred, on the balance of probabilities. In an unfair dismissal claim, the function of the tribunal is to consider the Respondent’s reasons for the dismissal and consider whether they fall within the range of reasonable responses available to a reasonable employer (as above).[15]The difference between these two sorts of claim was neatly summarised by Langstaff P (as he then was) in Rawson v Robert Norman Associates Ltd UKEAT/0199/13 : "In a conduct dismissal [an employment tribunal] examines the employer's view of the employee's behaviour. It is not concerned with whether that behaviour actually occurred, only whether, on the facts, the employer reasonably might conclude after a reasonable investigation that it did. ... In [a wrongful dismissal case], what is relevant is not what the employer thought happened, however reasonable that might be. It is what actually happened. A tribunal needs to know, and say why it takes the view that it does, that the conduct happened as alleged or did not."[16]An employee is entitled to notice of termination of employment under an express term of their contract or, at common law, reasonable notice will be implied. However, where the employee behaves in a way that amounts to a fundamental breach of contract, the employer is allowed to treat the contract as having been terminated immediately upon the employer accepting that breach. This is known as a repudiatory breach of contract.[17]The question of what level of misconduct is required for an employee's behaviour to amount to a repudiatory breach is a question of fact for the court or tribunal. The classic exposition of the concept of repudiatory breach of an employment contract is that of Lord Evershed in Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 2 All ER 285, where he set the question out as being “whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service”. It was also stated in that case that “the disobedience must at least have the quality that it is 'wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions”.[18]It has also been described as conduct “so undermine[s] the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in [the] employment” (Neary v Dean of Westminster [1999] IRLR 288).[19]In Adesokan v Sainsbury's Supermarkets Ltd [2017] EWCA Civ 22 Elias LJ explained that “Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.”
Findings of Fact
[20]I have not attempted to set out all of the evidence I have seen or heard, nor have I attempted to resolve every factual difference between the parties – to do so would be disproportionate and cause digression and confusion. Rather, I have focused on the evidence and facts which appear to me to be material and I find as follows:[21]The Claimant started working for the Respondent on 14 April 2014 as a HubLevel One Operative / Warehouse Operative based at the Respondent’s Marston Gate hub [25]. The Respondent adderts that the Claimant was dismissed on 22 November 2022. However, dismissal was not communicated to the Claimant until a letter of 2 December 2022 [114].[22]The Claimant’s contract contained the following terms / rights (amongst many others):(a) He was bound to work and be paid for 37.5 hours a week;(b) The holiday year runs from 1 January to 31 December [26];(c) He was entitled 21 days’ holiday per year, plus Bank Holidays;(d) Entitlement to holiday increased by one day for each year of service up to a maximum of 26 days plus bank holidays [26];(e) A right to be suspended ‘on full pay’ [28]; and(f) Contractual notice matched the statutory scheme, so that he was entitled to one week’s notice for each complete year of service up to maximum 12 weeks [29].[23]The Claimant stated that he had been promoted from Hub Handler unofficially some years prior to the matters in question (without a formal variation to his contract or a pay increase) and that he was doing that superior role immediately prior to the incident in question. However, I noted in his claim form he stated his role was Warehouse Operative and the Claimant accepted that he was working the small-sort carousel on 8 May 2022, which is the date of the alleged theft. This dispute of fact is therefore not material.[24]The Claimant’s job, when working on the small-sort carousel, was not agreed between the parties. Whilst both parties agreed that most parcels were sorted mechanically and only some are picked off the feeder to be manually sorted, they differed as to what the duties of the operatives working on the small-sort carousel were. The Claimant indicated that he was obliged to identify parcels that were either out of dimensions, over-weight or containing liquid and to apply surcharges to those. Mr Morris stated that there is and was never an obligation to seek out liquids or dangerous goods. Mr Morris stated that if there was liquid in a parcel, this is meant to be disclosed at the outset and the correct sums paid by the customer and the parcel would then be marked accordingly (as containing liquid). He stated that if a parcel containing liquid had not been properly declared at the point the customer placed it into the Respondent’s system, there would be no way of reliably identifying which parcels contained liquid and they would most likely end up going through the automated machine sorter in the normal way.[25]The Claimant’s evidence changed at times from saying he had been trained to shake parcels to see if they contained liquid and later suggesting that he did this of his own accord / initiative. Mr Morris was very clear that they were taught not to shake or handle parcels in a rough way due to health and safety reasons and that employees were never taught to shake parcels and that there would be no legitimate reason to identify if a parcel contained liquids. He stated that even if it was so identified, it could not be surcharged at that stage. He further stated that as part of his investigation, he asked the employee responsible for training handlers about this (who the Claimant had stated was the person who taught him to identify liquid-containing parcels) and she told him they had never been trained to do this nor to shake parcels to ascertain the contents. Ms Blauch also gave evidence that she had made enquiries of a person who received training for working on the small-sort carousel who also told her that they were not taught to shake parcels or identify those containing liquids.[26]I accepted the evidence of Mr Morris and Ms Blauch on this point because there was no evidence to support the Claimant’s case that he was meant to identify and apply surcharges to parcels containing liquids and because the Claimant’s evidence changed and was unconvincing. Further, as a matter of commonsense, shaking a parcel could damage it and the Respondent’s manual handling policy prohibited doing anything which could damage goods or be a risk to health and safety [33-36]. The Respondent’s business depended on it successfully conveying parcels safely and securely and teaching operatives to shake parcels was a direct risk to that.[27]Prior to 8 May 2022, the Respondent had received complaints from customers conveying / receiving jewellery and high value microchips, stating that contents had been intercepted and removed from parcels they had sent. After investigation, losses in the region of £1.15 million were identified to have occurred between September 2021 and April / May 2022 from the Marston Gate hub [66 and 87]. Most of the items stolen were 32GB memory modules from Micron [87], that have been called ‘Micron chips” by the witnesses in the case, a terminology I have adopted.[28]The Respondent commenced an investigation into the losses in April 2022, covering the period September 2021 onwards [63]. The investigation was undertaken by the Respondent’s internal Security Team (which included a former police officer).[29]On Sunday 24 April 2022, the Respondent’s security team ran a ‘sting operation’ in which they placed dummy parcels into the Marston Gate system to see if the thieves would be identified intercepting the parcels. No parcels were activated / triggered that evening. However, that evening, the investigator reports that he observed the Claimant, through CCTV, working on the small-sort carousel, shaking small parcels close to his ear whilst he was sorting [67]. The investigator regarded this as suspicious. The CCTV was not retained and was not available to view.[30]The Respondent was subsequently informed of parcels having been intercepted (which they learned of through customer complaints) and which had been processed through Marston Gate on Thursday 21 April 2022 [68].[31]The Respondent decided to conduct another operation to ‘bait’ those involved by sending dummy parcels with trackers, alarms and ‘smart grease’ (a UV staining ink) through the system on 8 May 2022. The three boxes were made to look like the ones known to contain Micron chips, with the same company branding and markings as some of the boxes that had previously been intercepted.[32]At 21:05 on 8 May 2022, Box 3 was tracked as having been removed from the conveyor belt and was in the centre of the warehouse near the loading bays, in a part of warehouse that is not covered by CCTV. This location is shown on the plan at [80].[33]Box 3 was ultimately recovered at the Respondent’s Swindon Depot, when it had been destined for the Aylesford Depot. This followed the pattern of prior losses where boxes destined for Aylesford ended up at the Swindon Depot having been intercepted (such as on 4 and 5 December 2021, 14 and 15 March 2022 [68]).[34]Box 3 was recovered on 9 May 2022 and is photographed at page [75]. The photograph showed it to have suffered severe damage. The branded tape that had originally sealed it was severed and generic brown parcel tape had been used to re-seal it. This is said to have been same way prior boxes from the same customer (Micron) had been opened and then resealed [74].[35]The Claimant and others who worked on the evening of 8 May 2022 were taken in for questioning. The Claimant is reported by the investigator to have said “What are you looking for ink?” when he was first brought into security and when asked why he had been walking around, said “I work in the small sort but left there to go and find water and walked up the warehouse”. [69][36]The CCTV of 8 May 2022 shows as follows:[37]Video 1: The Claimant can be seen sorting parcels on the small sorting belt (carousel). He and a colleague can be seen throwing boxes from one side of the belt to the other, to get the parcels into the correct sorting box for their end destination. At 21:03:44, the Claimant can be seen looking to the right of the screen (his left) then exiting his work station off to the back of the belt on the right-hand side of the screen.[38]Video 2: This starts at 21:04:11 (less than 1 second after video 1 ended) and shows the Claimant exiting the carousel area. He walks towards a belt that a colleague (his brother) Amjad Hussain was working on (facing in the direction of Mr Amjad Hussain) but only very briefly and then the Claimant turned around and walked away. He can then be seen meandering behind the main belt and walking towards the right-hand side of screen, before he disappears from view from the top right-hand side of the screen at which point he is lost from CCTV, at 21:04:48.[39]It should be recalled that Box 3 was intercepted at 21:05 when it was towards the right-hand side of the building near the out-feeder / C&D sections (different sections were designated by different letters) on the map at page [80]. There is no legitimate reason why the box should have been in that area, which was a CCTV blind-spot.[40]Video 3: The start of the video showed a section of the warehouse to the right-hand side of video 2, called the ‘office side’ by those who work there. At 21:06:20, very shortly after the tracker went off on the parcel, the Claimant appears on the CCTV entering this section. At 21:06:39 the Claimant is seen walking with his hands in his pockets and he raises his left hand out of his pocket whilst walking into an area that was outside the scope of the CCTV.[41]Video 4: At 21:07:19, the Claimant can be seen walking through the corridor towards the toilets, where he remained for approximately 3 minutes, before he did a very quick dash into the canteen, then exited at 21:10:35.[42]Video 5: This shows the Claimant exiting the canteen – where he had spent only a few seconds.[43]Both the Claimant and Mr Morris agreed that if the Claimant had been going from the carousel to use the toilet or to go outside to have a cigarette, the most direct route would have been that he would have remained in the CCTV frame on video 2 and would be shown as looping around the lower corner of the screen where he would have then been picked up on the cameras near the toilet / canteen area. As such, the parties agreed that the Claimant’s movements as seen on the CCTV did not show him taking the most direct route to have a cigarette or use the toilet.[44]All staff on shift on 8 May 2022 were checked to see if the smart grease had stained them and none were marked.[45]The Claimant was suspended on basic pay on 18 July 2022 pending an investigation into the allegation of ‘theft’ [62] and required to attend an investigatory meeting the next day, on 19 July 2022.[46]Various of the staff that were on shift and had been stopped by security on 8 May 2022 did not return for subsequent shifts.[47]During the investigatory meeting, the Claimant stated: (a) He had left the small-sort carousel around 21:03 on 8 May 2022 because “I came out to go for a smoke and say hi to Amjad” [82]. The investigator pointed out that he had not gone in the direction of going outside to smoke and had gone in the opposite direction. The Claimant answered “I do not exactly remember what happened on that day. Only two reasons I would leave the carousel is to go for a smoke or to the toilet, I may have stopped to speak to Amjad I do remember the officers and I told them that the water is under the old carousel and that is possibly why I was going that way, the police ask me the same question and as why did I state I was going for water” [83]. He later stated he had left his post to get water. The investigator noted he had previously stated he could not recall why he had left his post and asked him if he in fact got a bottle of water on that occasion and the Claimant replied “Not sure as I don’t think there was any there, can’t remember… I might have gone for a smoke or the toilet” [83]. The Claimant accepted that when he had been brought up to security on the evening of 8 May 2022 “Yes, I asked is that machine used for checking ink.” [83].[48]The investigator’s report was produced in September 2022. It stated: “The investigation has proved that the theft of Micron shipments is occurring at the FedEx Marston gate hub. Following identification of a modus operandi whereby Micron shipments are breached and the cartons discarded on to the FedEx Swindon bound trailer, CCTV shows one of the suspects to be in the right place at the right time when the dummy carton was breached at 21:05 hours. This suspect, Karan Hussain has provided unsolicited comments which prove he had prior knowledge of the incident before FedEx Corporate Security dealt with him on the 10 May 2022. He has also contradicted these comments by giving differing reasons why he left his work station during subsequent interviews. He has stated he left his work area to find water even though there were ample supplies of water right next to the area he worked in. He then said he left his work area to have a cigarette and possibly go to the toilet, both of which are false, as shown on CCTV” [91][49]However, at that stage, the Respondent suspected three suspects working together to steal and conceal the thefts, namely the Claimant, his brother and a third man who lived with them. The Report noted that on three of the dates when there were thefts of Micron chips, the Claimant worked and at least one of the other suspects worked with him. On 26 September, Colin Boyle recommended to management that there was circumstantial evidence to implicate all three men [106-7].[50]The Claimant was invited to attend a disciplinary hearing on 13 October 2022 to be conducted by John Morris, Senior Manager Operations at the Respondent’s Marston Gate Hub. The allegations against the Claimant to be considered at the disciplinary hearing set out in the letter are that:(a) the Claimant was involved in the theft of goods on shift commencing on Sunday 8th May 2022, from a consignment destined for Aylesford which had arrived at Marston Gate Hub in good condition and was later discovered damaged with contents removed at Swindon Station.(b) the modus operandi (where an incident follows a repeated pattern) related to this instance is like previous incidents of loss on Sunday 13th March 2022 and Sunday 24th April 2022, in that contents were removed from an item and the damaged item was subsequently discovered at the Swindon Station.[51]The disciplinary hearing commenced on 14 November 2022 and was attended by John Morris, Dominika Kania, Manager Operations, the Claimant, and his Trade Union Representative Alan Bradjuck.[52]In the meeting notes:(a) The Claimant accepted he had shaken packages to his ear [109], he said to check for liquids, which he maintained was part of his role on revenue protection. He further stated that Izabela Biernacka had told him to do so;(b) The Claimant initially stated the reason he had left the carousel on 8 May 2022 “was either toilet or cigarette… These are 2 main reasons I leave the middle”; and(c) When asked again, the Claimant stated: “I went for bottle of water to the old carousel. The bottles are by light sort on the pallet… I was having second thought and I went for the water instead of outside” [111][53]The Respondent adjourned the hearing to carry out further investigations, including speaking to Izabela Biernacka and David Lycett, who confirmed that staff were not trained to shake parcels to identify if they contained liquids and that this was not part of the role of revenue protection. The disciplinary hearing was reconvened and concluded on 24 November 2022.[54]John Morris wrote to the Claimant on 2 December 2022 to confirm that he had decided to summarily dismiss the Claimant for gross misconduct, purportedly as of 24 November 2022, and stating his reasons for that decision as being: “I believe that your actions on Sunday 8th May 2022 were such that they could not be considered coincidental given that they occurred around the time of arrival of the consignment into Marston Gate’s sort. It was these actions that subsequently prompted a warrant being issued for your arrest and the search of your premises. I was not satisfied with your explanation regarding your lifting specific items to your ear and rattling them. It was these actions that first brought you to the notice of the Security team. You maintained that this action was to allow you to detect items that warranted a surcharge such as liquids, however you did confirm that this action was solely carried out by yourself. You produced emails on your mobile from David Lycett and Izabela Biernacka based at Atherstone, regarding revenue generation, which prompted me to check with them to determine whether the checking of items in this manner had ever been prescribed, which they have confirmed it has not. I believe that this action, which is suspicious, was to identify contents for other means. Such actions without knowing the contents could at best result in damage or worse if the contents contained dangerous goods and hence it is not a process that has ever been implemented. Whilst the CCTV and investigation itself did not conclusively show you interfering with the consignment it did show that you left your workplace around the time of its arrival into the sort. On analysis of the CCTV footage, I believe you received some form of prompt coinciding with the item being processed, that triggered you to leave your normal workplace. Subsequent footage then shows you in different areas of the building, still away from your normal workplace and in the vicinity of the item that was infiltrated at 21:05, according to the GPS tracker. In your defence you stated that you were looking for water to drink however I have difficulty reconciling this with your sudden departure from your workplace and your subsequent movements. I note that the tracker was triggered at 21:05 and also note that a machine scan was timed at 21:06, which would have theoretically placed the box in two different areas however I am satisfied that the GPS tracker is the most accurate, placing it near to the area where it was subsequently disposed of, having been loaded on to the same incorrect outbound trailer, a means of disposal which reflected previous modus operandi. I note that Bedfordshire Police force have advised in writing that no further action will be taken in this instance unless further evidence is forthcoming. I do note also that there was a significant lapse in time between the incident itself and your arrest and search of your home address. Having weighed up all of the evidence before me I do believe that on the balance of probabilities that you were involved in the incident on the 8th May 2022 which mirrored previous modus operandi when you were also at work. You did not provide any mitigating factors.” [115][55]That letter also confirmed to the Claimant his right of appeal against Mr Morris’ decision. The Effective Date of Termination (EDT) was the day the Claimant received the letter, which I find is more likely than not to have been on 3 December 2022.[56]The Claimant lodged an appeal on 8 December 2022 [117]. In the appeal, the Claimant stated that he tried to use his initiative by shaking the parcels to see if there were undeclared liquids in order to generate revenue for the business and that whilst he had not been told to do that, he believed it was a logical thing to do to maximise revenue protection. He also stated he had left the carousel on the evening of 8 May 2022 to get water and he requested additional CCTV and stated his 10 years’ employment had been effectively disregarded. [117][57]The first-stage appeal hearing was held on 23 January 2023 and was conducted by Julie Blauch, Managing Director, Road Network Operations Division. During that meeting, it became clear that the Claimant had been using his personal mobile phone to take photographs of packages. The Claimant explained that his reasons for leaving the carousel on 8 May 2022 were that “I just got to the bathroom… I took a water bottle as there is no canteen open on a Sunday. … I leave my work station for toilet or cigarettes they are the only reasons.”. He also confirmed that he had worked as “video controller for about 6 months” and he talked about the CCTV camera angles stating there would have been one covering the area where parcel 3 had been breached [120].[58]The outcome from the first-stage appeal hearing was confirmed to the Claimant in a letter dated 22 March 2023. That letter concluded that the Claimant had explicitly broken the Respondent’s rules concerning use of mobile phones, the handling of packages and health and safety. Julie Blauch, upheld the original decision to dismiss the Claimant on the basis that:(a) His explanations as to where he was going when he left the carousel were inconsistent with the CCTV which appeared to show him going to the wrong area of the warehouse and his movements did not look deliberate / targeted to the areas where he might have retrieved his cigarettes or the toilet;(b) The shaking of packages was contrary to his training and she believed it to be suspicious; and(c) He had broken the rules around use of mobile phones.[59]The Claimant was informed of his right of a second appeal to Rock Sherman, VP Road Network Operations.[60]The Hearing with Mr Sherman took place on 3 August 2023. In that hearing, the Claimant stated the video showed him walking around looking for water. Mr Sherman stated that the footage showed he had walked past multiple pallets of water. Mr Sherman conducted further investigations, through which he was informed that the volume of thefts at Marston Gate had reduced since the Claimant had left and those which continued were for jewellery, not the Micron chips that had previously been targeted (noting that the dummy parcel (Box 3) was made to look like a Micron consignment).[61]On 13 December 2023, Mr Sherman sent the Claimant a letter upholding the decision to dismiss him.[62]I have to ascertain what reason was operating in the mind of John Morris at the time he decided to dismiss the Claimant and the reason in the minds of Julie Blauch and Rock Sherman when they decided to uphold the appeals. Mr Morris stated it was his belief that the Claimant was involved in or responsible for the thefts in question, including the breached Box 3 on 8 May 2022. The Claimant did not advance an alternative reason or suggest Mr Morris was advancing a false reason. I considered Mr Morris’ evidence to be credible and earnest and can find no evidence that there was an alternative reason for dismissal. (Similarly, both Ms Blauch and Mr Sherman stated that they upheld the decision because they considered Mr Morris’ decision was reasonable on the evidence). The Claimant did not seriously challenge Mr Morris belief, nor did I find any evidence to suggest it was not the real reason operating in their minds at the respective times.[63]Therefore, on balance of probabilities, I hold that the sole or principal reason was misconduct, namely the genuine belief that the Claimant had committed or participated in organised thefts of Micron chips passing through the Respondent’s Marston Gate hub. This is a potentially fair reason under s.98(2)(b) the Employment Rights Act.[64]I have then gone on to consider whether the Respondent had reasonable grounds for the belief that the Claimant had been involved in the thefts of Micron chips following a reasonable investigation. I shall address the investigation first.[65]I reminded myself that the law does not require an employer to undertake a process that is as careful or particular as say a criminal investigation. The range of reasonable responses test applies to this aspect of the test, such that an employer need only show that the process / investigation followed was within the range of reasonable responses.[66]I reminded myself that the Respondent is a large organisation. It has HR support and the resources to undertake the sting operations conducted in April and May 2022. The Respondent should be held to a level or standard that is commensurate with its size and resources.[67]In this case, there was an extensive investigation. Indeed there was a fourstage process commencing with the investigation undertaken by Senior Security Specialists, including a retired police officer, whose report is written in the style of a police report. The dismissing officer, Mr Morris, took the time to do a walk through of the warehouse to understand the Claimant’s movements as depicted on the CCTV. The persons involved at each stage of the decision-making process were of escalating seniority, culminating in an appeal heard by the Vice President Hubs Europe, who is responsible for approximately 8000 employees. Each decision maker came to the process fresh, in that they each had no prior involvement. The Claimant was informed of his right to have a companion at each stage and availed himself of that right. He was given the allegations prior to the disciplinary hearing and he understood what he was being asked to respond to. The Claimant had every opportunity to advance his case and did so at each stage. He had two levels of appeal. When the Claimant raised points in mitigation, they were investigated. For example, when he asserted that he had been trained to shake parcels to check for liquids, Mr Morris undertook further investigation and asked the person that the Claimant stated had trained him to do this. Ms Blauch also investigated this aspect further.[68]There were some weaknesses / failures in the process. For example:(a) Mr Morris would likely have benefitted from doing his walkabout of the warehouse with the Claimant, so as to obtain his account of his movements of 8 May 2022 as captured on CCTV. Mr Morris did his own independent walkaround, but did not invite the Claimant to join;(b) No CCTV was retained of 24 April 2022 (or other dates on which losses had been recorded) yet the pattern of losses was part of the background that was used to conclude that the Claimant was responsible;(c) The Respondent (specifically HR) should have provided the meeting notes to the Claimant after each meeting in good time for his memory to be fresh and given him the chance to edit / approve them and so that he had them available for the next stage of the process, be that a re-convened meeting, or the next formal stage of the process; and(d) Each decision-maker should have kept notes of every discussion they had with others in connection with the investigation. Mr Morris and Ms Blauch both undertook further investigations and neither of them took notes of every such investigation so it was not available for the Claimant to comment on at the time, nor for the Tribunal to review.[69]I have considered the seriousness of these matters individually and cumulatively. As to (a), the Claimant was given the opportunity to view CCTV and explain his movements on the 8 May 2022, even though he did not have the opportunity of a walk-through. As to (b), Mr Morris is entitled to rely on this evidence from the Respondent’s investigator in absence of any reason to doubt it or consider the investigator might be inaccurate. In any event, the Claimant later accepted he did shake parcels to his ear. As such, Mr Morris was entitled to rely on this. As to (c), the Claimant had his own representation at meetings and could have (and may have) taken his own notes of meetings and he did not challenge the notes in any serious way on later occasions. As to (d), the Claimant was told what evidence had been gathered and had the opportunity to challenge it or comment on it, even though he was not given written statements.[70]Accordingly, notwithstanding these failings, I find that the process followed by the Respondent was within the range of reasonable responses.[71]I have then gone on to consider whether the belief in the Claimant’s guilt was reasonably formed and maintained and whether the dismissal for this reason was fair or unfair in all the circumstances.[72]Given the fact that parcels were weighed on entry into and on their exit from the Marston Gate Hub, it was reasonable for Mr Morris to isolate the losses in question to that hub.[73]I note that the losses suffered were high value. From the Marston Gate Hub alone, between September 2021 and May 2022, there were losses of £1,15m. In the Respondent’s line of business (or indeed any business) this is not acceptable and could threaten key customer relationships. The issue had to be taken very seriously.[74]The Respondent identified that on at least three dates they were able to identify that Micron chips had been stolen, the Claimant had been working with either or both of the others he was associated with (his brother and their house mate).[75]The Respondent identified (and the Claimant does not dispute) that there were approximately 36 people working on a Sunday shift (para 7 Mr Morris statement). The Claimant himself accepts that at the time Box 3 is reported to have been breached, about 4-5 employees were in its vicinity (page 3 Claimant statement), including himself.[76]The Claimant had no good explanation as to why he left his workstation at the time in question and his explanations changed.[77]In his live evidence, the Claimant identified that water bottles are stacked up near to the small-sort carousal he worked on (for staff to help themselves to) and when watching the CCTV evidence, he pointed to where this was and he could be seen on the recording to walk straight past the stacks of water. Further, he accepted that had he wanted water, his likelier route on the CCTV would have been a more direct walk to the canteen area, not what he was seen to do, which is to walk around the perimeter of the warehouse. Therefore, it was reasonable for Mr Morris to reject the explanation that the Claimant had left his workstation to get water as implausible.[78]As to his explanation that he went for a cigarette or the toilet, the Claimant agreed that the CCTV showed him meandering around the warehouse rather than taking the most direct route to go to the toilet area or to go to his locker (to get his cigarettes) or to go outside to smoke. Accordingly, it was reasonable for Mr Morris to reject those explanations and to note that the Claimant’s explanations changed.[79]Mr Morris was entitled to reject the Claimant’s explanation as to why he was shaking parcels by his ear, because the explanation was implausible and contradicted by other witnesses’ evidence. It was reasonable in the circumstances for Mr Morris to view the Claimant’s behaviour as suspicious and to conclude it was for the Claimant’s own benefit to identify the contents of parcels.[80]When first confronted by security on 8 May 2022, the Claimant said words to the effect of “are you looking for ink”, in reference to the smart grease that had been used in the dummy parcels. The Claimant did not dispute this. It was reasonable for Mr Morris to interpret that as suspicious.[81]The incident on 8 May 2022 fit the same pattern (in the way Box 3 was breached and the way it was diverted to Swindon) as prior occasions when Micron consignments had been intercepted, and the Claimant had worked on those earlier dates.[82]Given the severity of the conduct that the Respondent genuinely believed the Claimant was involved in (or had committed alone), especially the value and scale of the matter, the outcome was reasonable notwithstanding the Claimant’s length of service and clean record. Theft is an honesty matter and goes right to the heart of the trust and confidence that must exist between employer and employee. The Claimant’s role included handling high-value items and revenue protection. The Respondent genuinely and reasonably believed that he had acted seriously contrary to that.[83]Therefore, in all the circumstances, I find that the decision to dismiss the Claimant was within the range of reasonable responses available to the Respondent. It did not have direct evidence of the Claimant’s involvement, nor had the CCTV caught him red handed, but it was not an unreasonable conclusion to draw on the evidence gathered and the Claimant’s inadequate and changing responses during the process. Notice Pay claim[84]As stated above, for an unfair dismissal claim, it is not my role to decide whether I believe the Claimant committed the acts in question, merely whether a reasonable employer faced with same information and evidence could reasonably have so concluded. I have held in the Respondent’s favour on this claim above.[85]For the wrongful dismissal claim for notice pay, the analysis is entirely different. Given that it is agreed that no notice pay was paid and no notice worked, the onus falls upon the Respondent to prove, on the balance of probabilities, that the Claimant did, in fact, commit a repudiatory breach of contract, or in other words, that he committed gross misconduct such that the Respondent was entitled to accept his breach and be free from any obligation to pay notice pay to him.[86]I bear in mind that throughout the internal process, and in his own live evidence, the Claimant has consistently denied the allegation that he intercepted or stole from any packages, on 8 May 2022 or otherwise. Whilst the police initially arrested him for the thefts, this investigation was dropped subsequently.[87]There is no direct evidence before the tribunal that shows that the Claimant intercepted any parcels at all, whether Box 3 or otherwise. He was not caught red handed on CCTV or by eye witness, nor did he have the smart grease on his hands or elsewhere when searched by security. The evidence of his guilt is entirely circumstantial.[88]I did not receive any direct evidence about the pattern of thefts prior to 8 May 2022. I had the internal report, but none of the investigators came to the tribunal to give evidence and there was no independent evidence of the matters contained within the reports pertaining to incidents prior to 8 May 2022.[89]As to the incident on 8 May 2022, I had the Claimant’s evidence and Mr Morris’ evidence and the CCTV and photographs. I accepted Mr Morris’ unchallenged evidence that approximately 36 people worked the Sunday shift. I noted that unlike various other staff that failed to return to work after the shift on 8 May 2022, after security had searched them all and questioned them, the Claimant continued to attend for his shifts and maintained his innocence. No Micron chips were ever found at the Claimant’s house or on him when he was searched by security and the police.[90]I accepted the Claimant’s evidence that 4-5 people were in the vicinity of Box 3 at the time the tracker activated, including the Claimant (which was evidenced by CCTV and his own evidence). Box 3 was plainly intercepted, raided and damaged and there had been an attempt to re-seal it with generic brown tape (per the photographs taken after it had been recovered at the Swindon depot). I find that whoever did this was looking to steal its contents.[91]The Claimant’s evidence changed at times and was not entirely satisfactory. He gave differing accounts as to why he left his workstation at the time that he did on 8 May 2022, both in the internal process and in his live evidence. However, I considered that if he had simply been going for a wander to do something as benign as use the toilet, talk to his brother, or get water, he would have no reason to commit the events of that evening to memory when asked about them later. Accordingly, if he was innocent, it would not be surprising for him to advance reasons why he “would” and “usually” does leave his work station, instead of recalling precisely why he did on the occasion in question.[92]Accordingly, whilst the CCTV and number of staff in the vicinity of Box 3 makes it possible that the Claimant was involved in intercepting of Box 3, I cannot say that on balance of probabilities he was so involved. Further, I have no direct evidence to link any interception of Box 3 with earlier thefts suffered from the depot, such as to draw any conclusions about the similarity of those events or the probability of who was involved (i.e. to triangulate who was working on each shift to look for patterns).[93]I also do not interpret the Claimant’s movement on the CCTV as ‘suspicious’ in way that Rock Sherman and others did. I noted that the Claimant can be seen to be looking around him and not taking a direct route to the canteen, outside or the toilets, but there is nothing inherently suspicious about the footage and there is no CCTV showing him discarding an item from his pocket. This is one (plausible) interpretation of what he must have been doing on the CCTV when he takes his hand out of his pocket as he moves out of frame, but it is not captured on the footage itself and is an assumption.[94]I also do not conclude from the CCTV that when the Claimant looks to his side in Video 1, it indicates there was a ‘trigger’ from another person alerting him to the parcel. He is seen to look over, but there is no evidence to suggest this was an alert from a co-conspirator as the Respondent believed. This is a plausible explanation and not an unreasonable assumption, but I do not find it to be the case on balance of probabilities.[95]As such, whilst I have held that the Respondent was reasonably entitled to reach the decision that the Claimant was complicit in the thefts on the evidence it had before it, for the purposes of the unfair dismissal claim above, I am not satisfied on balance of probabilities that the Claimant was involved in or responsible for any thefts from the Marston Gate hub on the evidence presented to me.[96]Therefore, I find that the Claimant is entitled to eight weeks’ notice, less any sums overpaid from 3 December 2022 onwards.[97]Page [255] appears to show he was paid up to 17 December 2022. If this is correct, he has been paid an extra two weeks’ after the EDT (from 3-17 December 2022) and would be entitled to an additional six weeks’ notice pay. This sum will have to be assessed if it cannot be agreed. It is up to the Respondent if it intends to challenge the Claimant’s mitigation during the relevant period. If this is to be assessed, there will need to be submissions from the parties as to what elements should or should not be included in notice pay and there may be a need for further evidence.[98]The parties are to liaise to agree the position on notice pay by 8 November 2024, and if not agreed, to write to the tribunal for my attention to decide the matter either at a hearing or on paper. Pay during Suspension[99]In order to succeed in his claim for unlawful deduction from wages, the Claimant needs to demonstrate that payment for his usual level of overtime working was ‘properly payable’ even when he was suspended. As stated above, the contract merely states that the Respondent reserves the right to suspend “on full pay” [28]. There is no description of what that means in the contract and I have not been taken to any other evidence which assists with this. Neither Counsel for the Respondent nor the Claimant addressed me on it.[100]I have considered the case of Agbeze v Barnet, Enfield and Haringey Mental Health NHS Trust 2022 IRLR 115, EAT, where the EAT held that a zero-hours healthcare assistant who provided his services as a ‘bank worker’ had no right to be paid during a disciplinary suspension. Under the express terms of his contract, the Trust was not obliged to offer him any work and he was not obliged to accept any assignment offered to him. The contract provided for payment only in respect of assignments that were offered and accepted. He was suspended for several months while a disciplinary investigation took place and was not offered any assignments during that period. He presented a claim for unlawful deductions from wages, relying on an implied term that he was entitled to be paid his average wages during suspension so long as there was work available. An employment tribunal rejected his claim, and the EAT upheld that decision.[101]I consider the overtime in the present case to be akin to that. The Claimant had no right to be offered overtime and was only obliged to receive pay for it if he was offered and accepted an overtime shift. This is different than his contractual right to basic pay, which he would be entitled to even if the Respondent did not have any work for him. In essence, the overtime was not mandatory or guaranteed and in that sense, is akin to a zero-hours obligation. The Claimant was paid his normal basic pay during his suspension and I find he was entitled to no more.[102]Accordingly, I do not hold that there has been any unauthorised deduction from his wages during the suspension period.[103]I also reject the Claimant’s claim that he did not receive pay awards. The evidence shows that he was given two sums of at least £500 each during his suspension period, albeit that one was later half rescinded (i.e. £250). As such, even on his own case as to his entitlement to annual pay awards, the Claimant received them. Contractual Holiday Pay[104]The Claimant was entitled to 26 days’ leave plus Bank Holidays under his contract [26]. In 2022, there were 10 Bank Holidays because of the Platinum Jubilee and the Queen’s funeral. By the Effective Date of Termination, eight of those 10 Bank Holidays had passed. As such, his entitlement to holiday by the EDT was those eight Bank Holidays plus a pro-rated proportion of the annual 26 days. This is approximately 24.5 days. As such, in total, 32.5 days’ holiday was due and owing on the EDT. The parties agreed he had been underpaid in the agreed sum of £10.00 and judgment was given accordingly.