Mr M Brackenbury v DHL Services Ltd: 3303540/2022
JUDGMENT
[1]The Tribunal finds the claims of unfair dismissal brought under s.100(1)(c), s(100)(1)(e) and s.94 of the Employment Rights Act 1996 not well-founded.[2]The Tribunal dismisses the claim for unlawful deduction of wages on withdrawal of the claim by the claimant. JUDGMENT having been sent to the parties on 24 May 2023 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The claimant was employed by the respondent from 16 February 2015 to 2 December 2021 when he was dismissed by his employer for gross misconduct.[2]By a claim form dated 23 March 2022 he brought proceedings against the respondent for unfair dismissal and unlawful deduction of wages. The claim was allotted number 3303540/2022.[3]At the outset of this hearing the claimant indicated that he would like to withdraw his claim for unlawful deduction of wages. I therefore dismissed it on withdrawal and will make no further reference to it.[4]The claimant pleaded unfair dismissal in three respects. Taking them in no particular order, the first allegation was automatic unfair dismissal under s.100(1)(c) of the Employment Rights Act 1996 (“ERA”) for bringing to his employer’s attention potentially harmful health and safety practices.[5]The second allegation was automatic unfair dismissal under s.100(1)(e) of the ERA for taking steps to protect a colleague from a serious and imminent danger.[6]Finally, unfair dismissal was also pleaded in the alternative under s.98 of the ERA which has been referred to as “ordinary” unfair dismissal during the course of this hearing and it seems fair to adopt the same wording.[7]The claimant submits that he was not dismissed for a reason within s.98 of the ERA rather that it was for reasons relating to health and safety as mentioned in the first two allegations of unfair dismissal. Alternatively, if it was for misconduct falling within s.98, the dismissal was not within the range of reasonable responses to the circumstances, was made on the basis of his manager’s personal dislike of him or bias, was inconsistent with other disciplinary decisions, and was decided at the conclusion of a procedure that was not fair.[8]The respondent responded to the claim on 27 May 2022 contesting it in full. The respondent pleaded that the claimant had not been dismissed for any reasons relating to the protection of health and safety but for gross misconduct, being the breach of company health and safety policy.[9]The respondent submitted that the investigation leading up to dismissal was fair and reasonable, that the decision taken to dismiss the claimant was within the range of reasonable responses to his misconduct, that it was not inconsistent with prior disciplinary decisions that the respondent had taken and was not to do with any personal bias against the claimant.[10]Evidence has been provided by way of witness statements, one from the claimant and two from the respondent. They were provided by Mr Emungu, who was a senior manager responsible for the claimant at the time of the incident, who was the initial dismissing officer, and by Ms Johnson, another senior manager, who decided the claimant’s appeal against his dismissal. At the time of the incident, Ms Johnson was beginning the handover process to take over Mr Emungu’s duties. By the time of the appeal, Ms Johnson had become the claimant’s line manager, and presumably would have been his line manager were the claimant to have been reinstated.[11]All witnesses appeared at the hearing and were asked questions.The issues
[12]The issues for this tribunal were helpfully laid down in an agreed list submitted prior to the hearing. I will not repeat them here, but I will address them during the course of this record of my reasons. My thanks go to both parties for providing this document.The facts
[13]I will begin by laying down the facts that led up to the claimant’s dismissal. They are largely uncontroversial and agreed. Before I do that, I want to expressly thank all of the witnesses for their evidence. They had provided clear and largely consistent evidence overall. Any minor inconsistencies that there may have been, are easily explained by the lapse of time and the situation that involved a short period of time and many split-second decisions.[14]The claimant was employed as a shunter at the respondent’s Doncaster premises serving Next. The premises consisted of two distinct locations a short drive apart and known as D1 and D2. That is certainly the way that they were referred to in this hearing and that is how I will refer to them.[15]The claimant had a clean disciplinary record up until his dismissal.[16]The respondent company has several safety policies relating to its operations and conduct regular training on these. Of particular note to this claim, it has policies about safe exiting of its premises in Doncaster (a copy was provided at page 263 of the bundle regarding D2, with D1 having a different lay-out and exiting process) and a policy addressing the use of mobile phones whilst driving commercial vehicles. That policy was actually recorded in the same policy concerning exiting the Doncaster premises, but was also explained separately in a stand-alone document included at page 78 of the bundle.[17]This policy is entitled ”Mobile Device Safety Policy” and an excerpt from page 80 of the bundle is as follows (first paragraph on the left-hand side under the title “Policy Statement”): “The use of any mobile device even with an earpiece or handsfree device when operating a commercial vehicle or mobile plant or workplace equipment is expressly forbidden unless in the case of a commercial vehicle or mobile plant it is safely parked and the engine turned off.”[18]The respondent also has a disciplinary policy which was included at page 70 of the bundle. Again, I shall read out the relevant except which is at page 73 of the bundle. The excerpt is from the right-hand side, under the title “1.1 Examples of acts of gross misconduct”: “Employees may be summarily dismissed ie dismissed without notice for the following conduct. Please note this is not an exhaustive list.”[19]The examples of conduct that appear possibly relevant to the circumstances before me are “deliberate or serious breaches of conduct, standards, rules and procedures”; “deliberate, repeated or serious breaches of health and safety procedures, rules and safe systems of work” (that is the part that was relied on especially at the hearing), and, finally, the last example is “deliberate or serious beaches of the company’s policies, rules or procedures in relation to”, and then it gives a list, “email and internet usage, computer equipment and software, mobile phones and mobile phone enablement, data protection”.[20]The claimant had knowledge of these polices.[21]The circumstances that led to the claimant’s dismissal were as follows.[22]The chronology starts at a team meeting that took place in late October or early November 2021. The date is not recorded in the documents and the precise date is not important for present purposes. At this meeting, the claimant raised with his manager, Mr Emungu, certain issues relating to safe working practices. Some of those issues were taken away and investigated, notably a complaint about lack of radio communication from office staff, relating to drivers communicating by radios that they were provided with to their head office or to the transport offices.[23]Other issues raised were taken no further.[24]Mr Emungu in his evidence stated that he had called the meeting and that it was at his initiative. He had called it because he was interested to hear from drivers and colleagues about health and safety issues at the Doncaster site and if there was anything management could do.[25]A few weeks later, on 23 November 2021, the claimant was called by a colleague about a damaged trailer, known as a “box”. The claimant had been working at D1 at the time and headed over to D2 after the call. At D2 he was informed of the damage to the box and that it had been reported to the office by the driver of the vehicle to which it was attached. He was also informed that the driver had been instructed to take the box to D1 to be dismounted for inspection and he was in transit at that time. The claimant tried to contact the office by radio and by mobile phone also, both times unsuccessfully, attempting to report the damage further and requesting urgent action to inspect the trailer prior to it being dismounted as he considered it could be a serious health and safety risk. After that, he then called the personal mobile phone of a colleague he knew who worked at D1, Josh Allen. The claimant hoped that Mr Allen would be able to intercept the trailer as it arrived at D1. Mr Allen unfortunately was not at the site and could not help the claimant. When that became apparent the claimant drove off in his vehicle to intercept the trailer himself. He did so whilst still on the phone to Mr Allen with his phone in his hand, held to his ear.[26]On leaving D2 the claimant breached a red light at the site exit although the exit barrier was raised. The vehicle was able to exit D2 without causing damage either to the vehicle or to the barrier.[27]Both the fact that the claimant was on a call at the time with a hand-held device and that he breached a red light at the exit were noticed by four colleagues or Next representatives that were in the gatehouse next to the D2 site exit. These individuals reported the facts and provided statements about them. CCTV footage from the gatehouse, which I reviewed, also showed these actions, albeit it was not clear from the CCTV about the breach of the red light (but this fact is agreed). It was clear from the CCTV that the claimant was on his phone.[28]The claimant was subsequently suspended pending investigation for a disciplinary offence, notably breach of the polices that I have mentioned previously.[29]The facts were investigated, statements were taken, a hearing was held by Mr Emungu, and the claimant attended that meeting with a union representative. The meeting was adjourned at some point for further consideration. During that break, Mr Emungu had a discussion with Mr Allen to confirm or otherwise the account that the claimant had given of his conversation. Mr Allen confirmed that account orally. A written statement from Mr Allen was provided later on, but not to the claimant during the disciplinary process and not prior to him being dismissed. The meeting was then reconvened at which point the claimant was dismissed.[30]The Claimant appealed that decision. The appeal was heard by Ms Johnson who again held a hearing at which the claimant was in attendance with a representative, and the decision to dismiss him was confirmed.[31]By this point, Ms Johnson had become the claimant’s line manager following a handover from Mr Emungu.[32]It appears to me that the only important findings of fact that I need to determine in this case are, firstly, the reason for the claimant’s dismissal, and, secondly, whether he held a reasonable belief in the danger that the damaged box posed.[33]On the first issue, the claimant contends that it was his raising of health and safety issues at the meeting in late October or early November that led to his dismissal. Alternatively, it was conduct as pleaded by the respondent. My finding on the balance of probabilities is that the reason for dismissal was conduct. The meeting that took place in late October or early November appears to me to have been a relatively routine meeting to address working practices. Some issues were taken away for investigation, which demonstrated a genuine interest in pursuing issues raised. There is no clear evidence of any genuine bad feeling between attendees or that the fact that those issues were raised was held against the claimant. On the other hand, there were clear beaches of company policy that have been admitted and they were the clear focus of both the investigation and the disciplinary hearing, as well as the appeal hearing.[34]This finding dispenses entirely with the s.100(1)(c) ERA claim as that depends on the reason for dismissal being the raising of health and safety concerns.[35]As to the second issue, whether the claimant reasonably believed there was a serious and imminent danger posed by the damaged box, my finding is that the claimant did have a reasonable belief in a serious and imminent danger. Viewed subjectively, the claimant has given a very clear and consistent position in that regard. The chronology of his actions certainly reflect the concern he had and there is no good reason to doubt his account of events and his explanation of the reasons why he took the actions he did. However, it is not only the claimant’s perspective that matters, but also an objective analysis of whether his belief was reasonably held. I find that in the circumstances of this case it was. Although the claimant was not a professional engineer or technician, he explained that he had some knowledge of the types of damage that boxes or trailers can suffer and the potential consequences of that, which include collapse. If a box were to collapse on anybody, the injuries suffered could be extremely serious. He had gained this knowledge through experience observing engineers at work. He believed that the damage in this case, being situated around one of the box’s support legs, may have had an impact on the box’s structural solidity, especially if dismounted. He was aware the issue had been reported, but also that it had not been viewed independently by an expert and that no investigation had taken place immediately after that report was made. He was aware that the driver had simply been instructed to move the box to D1 for dismounting. I find that in light of all of these circumstances the claimant’s actions were those of a diligent and concerned employee, and I find that his belief in a serious and imminent danger was perfectly reasonable.[36]Those were the relevant facts.The law
[37]The applicable law is largely uncontroversial however it is worth reciting the relevant sections of s.100 of the ERA.[38]Section 100(1) of the ERA is a section entitled “Health and Safety Cases”: “100 Health and safety cases.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that— ….. (c) being an employee at a place where— (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer’s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, ….. (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.(2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time.(3) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (1)(e), he shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have dismissed him for taking (or proposing to take) them.”[39]As to the s.100(c) claim, as I have mentioned above, the finding that the reason for dismissal was conduct means that that element of the claim must fail necessarily because the reason for dismissal was not the raising of circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety; the reason was conduct. I will refer no longer to that part of the claim which I find is not well-founded.[40]As to the remainder of the law there is no dispute to the relevant tests to apply in relation to the “ordinary” unfair dismissal claim. In brief, the respondent must have had a genuine belief, after reasonable investigation, that the events that took place constituted gross misconduct and that the sanction applied, i.e. the dismissal, was within the range of reasonable responses after undertaking a fair process.Conclusions
[41]I will address the s.100(1)(e) claim first. It was submitted by the respondent that I need not consider this claim if I found that the reason for the dismissal was misconduct. I have found the reason was misconduct. However, I do not consider that necessarily this dispenses with the s.100(1)(e) claim. I find that that sub-section is very carefully worded, its focus is on the steps that were taken and not how those steps have been characterised by the respondent or by anybody else. I see no reason in principle why a claimant’s actions, which they take to prevent a serious and imminent danger cannot also potentially constitute gross misconduct in certain circumstances, in the eyes of an employer. What is key is to assess whether the steps taken were appropriate in the circumstances.[42]The first issue in this claim is whether the claimant held a reasonable belief in the presence of a serious and imminent danger. I have found that he did.[43]However, that is not the end of the matter in relation to s.100(1)(e). The second issue for me to address is whether the steps that the claimant took were “appropriate”. I have no doubt that up until the point he drove off with a mobile phone in his hand, all the steps taken plainly were appropriate. For instance, it was appropriate to have stopped his work at D1 and travelled to D2 to lend his assistance, and to have sought to notify the office of his particular concerns. The difficulty is that from the point that he decided to drive off with the phone in his hand, he committed a serious breach of the company’s health and safety policy, which was in itself potentially dangerous. It has been admitted as such by the claimant. In a similar manner, the breaching of a red light is also a serious breach of the company’s health and safety procedures. In relation to the red light, stopping for a matter of a second or two was in all likelihood all that was needed to exit the site safely. It cannot sensibly be argued that such a short period of time would have had any impact on limiting the danger posed by the damaged box. This is especially so in circumstances where the claimant knew that the driver of the vehicle towing the box was aware of the damage and was likely to inspect it further on arrival at D1 before dismounting (a full walkaround of the vehicle is required before dismounting in accordance with separate company policy). So, although there was a serious and imminent danger, the appropriateness of the steps the claimant took has to be assessed on the basis of the circumstances as they existed at the relevant time. Just because a danger was serious and imminent, does not mean that any actions would be justified in seeking to avoid it. In this case, it was justified to take prompt action, but time was not so critical as to justify inherently dangerous driving practices, notably driving whilst on a mobile phone and breaching a red light.[44]The alternatives available to the claimant at this point were numerous, the most obvious of which was simply to hang up the phone as soon as he had established that Mr Allen was not able to assist. That was not done. As I have briefly mentioned, the claimant himself accepts now and has accepted in his evidence, and has been consistent with this throughout, that his actions were not appropriate. He has learnt from them and shows remorse and has said that he would not repeat them. His counsel has stated that they were splitsecond decisions and that he would not take the same decisions again. I accept that they were split-second decisions but, in my judgment, they were poor ones and not appropriate in the circumstances. Accordingly, the claim under s.100(1)(e) of the ERA must fail and is not well-founded.[45]In any event, even had I found the steps to be appropriate, I would have had to have regard to s.100(3) of the ERA. This provides that the dismissal is not to be regarded as unfair if the employer shows that it was so negligent for the employee to take the steps which he took that a reasonable employer might have dismissed him anyway. I do not need to address that point because the s.100(1)(e) claim fails but the issues are similar to those that arise in the “ordinary” unfair dismissal claim and my conclusions would be the same.[46]As to the final claim of “ordinary” unfair dismissal, I have already found that the reason for dismissal was misconduct.[47]The first issue I have considered in relation to this claim is therefore whether the respondent held a genuine belief, after a reasonable investigation, that the facts alleged occurred and that they constituted gross misconduct. As to the investigation, it appears to me to have been reasonable, a matter that has largely been accepted by the claimant. The relevant facts were ascertained through statements and by CCTV. The claimant was given an opportunity to present his version of events and the reasons for his actions. In light of the policies that I have referred to above, alongside the widely-known and wellunderstood safety impacts associated with mobile phone usage whilst in control of a vehicle and with failing to respect traffic signals, it is difficult to argue that the actions that the claimant took could not be considered gross misconduct. I have no doubt that the respondent held a genuine and reasonable belief that those actions did constitute gross misconduct in the circumstances of this case.[48]The second issue I have considered is whether dismissal was within the range of reasonable responses that an employer could have to the gross misconduct. As outlined at the hearing, it is not my role to judge whether I consider the decision to be harsh or whether I might have taken a different decision in the circumstances. In this case, the respondent’s policy is clear that gross misconduct can lead to summary dismissal. I was informed at the hearing of the respondent’s “zero-tolerance” approach to breaches of health and safety policy, especially on the subject of mobile phone usage. The respondent’s witnesses provided evidence to support this. It appears quite clear from the remainder of the bundle that the respondent imposes various training requirements focused on safe working practices and holds meetings to discuss them.[49]The mitigating circumstances were put forward by the claimant, notably that he was concerned about his colleagues’ safety, and they were taken into account by the respondent. As is made clear from the notes of meetings that led up to the decision to dismiss the claimant, both the initial disciplinary meeting as well as – and more particularly – the appeal meeting, the claimant focused his representations throughout the disciplinary process on these mitigating circumstances. With this in mind, it is difficult to see how those points could not have been taken into account, as suggested by the claimant. In any event, the outcome letter demonstrates otherwise. It is made especially clear from the appeal outcome letter and from the notes of the appeal hearing. There is no doubt that the events happened and, in light of all of the circumstances, I cannot accept that the dismissal, albeit the most serious outcome, was not within the range of reasonable responses available to the respondent in this case.[50]As to the alleged inconsistency of this decision with other disciplinary decisions that have been taken by the respondent, I had little evidence of any disciplinary decisions resulting from a breach of the mobile phone policy. The example provided by the claimant was not of a breach of this policy; it was of a colleague damaging a box. The damage may have resulted from a breach of health and safety policy, but there is no requirement for a respondent to treat every breach of health and safety policy in the same way, certainly not when the breaches relate to different policies. It was stated by Ms Johnson that she had come across specific breaches of the mobile phone policy before and, in every instance, the breach had led to dismissal or to the employee concerned resigning prior to such a decision. I had no objective information to support this statement, but most importantly had no evidence of any inconsistency. Therefore, I was not satisfied either that a relevant issue was not taken into account by the respondent or that equity should lead me to find the dismissal unfair based on inconsistent decision-making.[51]Finally, the claimant raised three issues about whether the procedure leading up to his dismissal was fair. The first was that, Ms Johnson having taken over Mr Emungu’s line management role, the dismissing and appeal officer were not sufficiently independent of each other rendering the dismissal process unfair. However, both were senior managers with numerous responsibilities. Ms Johnson had arrived recently in Doncaster from a different location. There was no evidence of collusion between them. It is clear in any event from Ms Johnson’s evidence and meeting notes that she properly considered the issues afresh and approached the claimant’s appeal with an open mind. I do not accept the claimant’s submission that the appeal process was a “rubberstamping” exercise. I do not accept that the pre-arranged transfer of responsibilities from Mr Emungu to Ms Johnson in any way rendered the claimant’s disciplinary process unfair or led to the predetermination of his appeal.[52]The second issue was alleged bias against the claimant, largely on the basis of the meeting that took place in late October or November during which the claimant raised concerns about safe working practices. Mr Emungu had called the meeting to receive feedback from colleagues, and acted upon it in certain respects. His evidence was clear that he held no grudge against any individual for raising issues, not least because that was the precise reason he had called the meeting. I accept that evidence and do not accept on the balance of probabilities that Mr Emungu was biased. I have already mentioned there was no evidence of collusion between Mr Emungu and Ms Johnson, so, even had Mr Emungu been biased, that would have been rectified by Ms Johnson’s open mind in the appeal process.[53]The final issue related to the process of taking Mr Allen’s witness statement. I can fully understand and appreciate why the claimant was frustrated and concerned by not having been presented with Mr Allen’s written statement in advance of his dismissal. However, I accept the respondent’s submission in this regard. Mr Allen’s oral and subsequent written statement served simply to corroborate the claimant’s account of the phone call between him and Mr Allen. The claimant had nothing material to gain from being aware of it, or seeing it in advance. It did not form part of the case against him and consequently there was nothing arising from it for him to respond to. Whether or not the witness statement itself was typed by Ms Johnson, which was mentioned as a possibility at the hearing, is not a matter that I need to determine. Ms Johnson said that she did not physically write it; the claimant asserted that she did. The same reasoning as I have just outlined applies to both situations. The statement simply corroborated what the claimant said, and this was taken into account by the respodnent, so there was very little to be gained from it, and no unfairness in it having been typed up, or having been seen prior to the start of the appeal process (if that was the case), by Ms Johnson. So, overall, although I understand the claimant’s concerns, I do not accept that this issue, unfortunate as it is, led to the disciplinary process being rendered unfair.[54]Accordingly, I find that the claim for unfair dismissal is not well founded in all of its respects and the claim must be dismissed.