Employment Judge SkehanIn person for claimantMr Morley, (instructed by solicitor) for respondentDate 13 May 2021
JUDGMENT
[1]The claimant was unfairly dismissed and his claim for unfair dismissal is wellfounded.[2]The claimant was wrongfully dismissed and his claim for breach of contract is successful.[3]This matter will be listed for a remedy hearing and a case management order will be sent to the parties separately.
REASONS
[1]This was a remote hearing which had not been objected to by the parties. The form of remote hearing was video. A face to face hearing was not held because it was not practicable and no-one requested the same and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 101 pages from the respondent and 75 pages from the claimant, together with the witness statements submitted by both parties. The judgment made is described above.
The issues
[2]By claim form received at the Employment Tribunal 3 September 2020 the claimant claimed unfair dismissal. There was some discussion as to whether or not a claim for wrongful dismissal was included within this claim and it was agreed by the respondent that a claim for wrongful dismissal was included within the litigation. The respondent alleges that the claimant was dismissed for reasons relating to his conduct being failure to attend work without justification and failure to attend a disciplinary hearing. The issues were identified as:a. Did the respondent have a genuine belief that the claimant was guilty of the misconduct for which he was dismissed?b. Did the respondent have in his mind reasonable grounds upon which to sustain that belief? Was that belief formed after a fair and adequate investigation?c. In reaching the decision to dismiss, did the respondent follow a fair procedure?d. Was the dismissal within the band of reasonable responses open to an employer in the circumstances?e. Did the claimant cause or contribute to the dismissal and if so by how much should the basic and compensatory award be reduced?f. In the event that the dismissal was unfair due to the respondent following an unfair procedure should the compensatory award be reduced or limited to reflect the chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome. This is commonly referred to as a Polkey deduction (or reduction) following the case of Polkey v AE Dayton Services Ltd [1987] IRLR 503.g. In respect of the wrongful dismissal claim, did the claimant breach the contract of employment allowing the employer to summarily terminate the claimant’s employment without notice.[3]In a claim of unfair dismissal, it is for the respondent to show a genuinely held reason for the dismissal and that it is a reason which is characterised by section 98(1) and (2) of the Employment Rights Act 1996 (“the ERA”) as a potentially fair reason. Conduct is a potentially fair reason for a dismissal under section 98 of the ERA. If the respondent shows such a reason, then the next question where the burden of proof is neutral, is whether the respondent acted reasonably or unreasonably in all the circumstances in treating the reason for dismissal as a sufficient reason for dismissing the claimant, the question having been resolved in accordance with the equity and substantive merits of the case. It is not for the Employment Tribunal to decide whether the respondent employer got it right or wrong. This is not a further stage in an appeal.[4]In a case where the respondent shows the reason for the dismissal was conduct, it is appropriate to have regard to the criteria described in the wellknown case of Burchell v BHS [1978] IRLR 379. The factors to be taken into account are firstly whether the respondent had reasonable grounds for its finding that the claimant was guilty of the alleged conduct; secondly whether the respondent carried out such an investigation as was reasonable in the circumstances; thirdly whether the respondent adopted a fair procedure in relation to the dismissal and finally whether the sanction of dismissal was a sanction which was appropriate, proportionate and, in a word, fair. In relation to each of these factors, it is important to remember at all times that the test to be applied is the test of reasonable response.[5]Section 123(6) of the ERA provides that “Where a tribunal finds that a dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.” The contributory conduct must be conduct which is 'culpable or blameworthy' and not simply some matter of personality or disposition or unhelpfulness on the part of the employee in dealing with the disciplinary process in which he or she has become involved: Bell v The Governing Body of Grampian Primary School UKEAT/0142/07.
The Facts
[6]I heard evidence from the claimant on his own behalf. The claimant was assisted by an interpreter and the language was Bengali, Sylheti dialect. On behalf of the respondent, I heard evidence from Mr Hezili, who dealt with the dismissal and Mr Dogankaya who dealt with the appeal. These witnesses gave evidence under affirmation. Their witness statements were adopted and accepted as evidence-in-chief and the witnesses were cross-examined.[7]As is not unusual in these cases the parties have referred in evidence to a wider range of issues than I deal with in my findings. Where I fail to deal with any issue raised by a party, or deal with it in the detail in which I heard, it is not an oversight or an omission but reflects the extent to which that point was of assistance. I only set out my principal findings of fact. I make findings on the balance of probability taking into account all witness evidence and considering its consistency or otherwise considered alongside the contemporaneous documents.[8]The respondent is a large employer with substantial resources. Mr Hezili told me that it employed between 500 and 600 employees and has a central HR team of two. The claimant was employed working at Pizza Hut as a delivery driver since December 2016. Initially the claimant worked 63 to 78 hours a fortnight. Over time his hours were reduced and he was offered 30 hours or less fortnightly. The claimant’s contract of employment stated that the respondent reserved the right to vary hours of work without notice. The claimant signed his contract but was not provided with a copy of the contract until later in the litigation process. The claimant said that during his employment the respondent referred to his contract as a ‘zero hours contract’ it was not until he was provided with a copy of his contract that he realised that his contract was not phrased as a ‘zero hours’ contract.[9]On 23 March 2019, England went into lockdown due to the Covid 19 global pandemic. During the course of the hearing of the hearing both parties referred to the Covid 19 lockdown imposed in England and the subsequent easing of restrictions. The relevant government guidance effective at the time was not provided within the bundle of documentation and both parties agreed that I should refer to the government guidance in place at the relevant times for background information. There were substantial amounts of government guidance relating to the pandemic produced between March and July 2020 and the below is not intended to be a comprehensive review of the situation. I confirm that I have taken into account that:a. A general lockdown was imposed in England by the government on 23 March 2020 due to the Covid 19 pandemic.b. Those who could work from home were told to do so.c. Those who were deemed extremely clinically vulnerable were told to ‘shield’ i.e. to stay at home.d. Those who had an underlying health conditions, but not deemed extremely clinically vulnerable, were identified as at increased risk of serious illness in the event of contracting Covid. The gist of the government advice was that those with underlying health conditions should take additional precautions, for example in the government guidance dated 17 March 2020 says ‘… For those who are over 70, have an underlying health condition or are pregnant, they are strongly advised against these activities and to significantly limit face-to-face interaction …’e. The social distancing requirement set out within government advice was 2 m prior to 24 June 2020.f. On Tuesday 23 June the Prime Minister announced changes to the lockdown measures ‘to enable people to see more of their friends and family, help businesses get back on their feet and get people back in their jobs.’…., the Prime Minister also set out that where it is not possible to stay two metres apart, guidance will allow people to keep a social distance of ‘one metre plus’. This means staying one metre apart, plus mitigations which reduce the risk of transmission.[10]The respondent’s business, operating in the takeaway food industry did not see any reduction in their output during the pandemic.[11]The claimant had suffered a heart attack in 2014 and had an underlying heart condition. He was required by the respondent to fill in a health questionnaire every year and completed the respondent’s driver documentation on 26 November 2019 indicating that he had a heart condition that was being managed by his GP. The claimant said that, prior to the pandemic, he had submitted a letter to the respondent from his GP dated 26 October 2016, addressed ‘to whom it may concern’, confirming that the claimant suffered a heart attack in October 2014. The claimant had an angiogram and stent inserted at that time. The claimant had been discharged from the cardiologist but remained under the care of his GP. The claimant was not classed as ‘extremely clinically vulnerable’ and had not been advised to shield during the pandemic. Nor was the claimant provided with a fit note saying he was unfit to work. The claimant says that his doctor’s advice was to attend work should he feel safe but not attend work should he feel that it was unsafe to do so.[12]The claimant said that due to worries about his pre-existing health issues, he contacted his line manager, Mr Iqbal in March 2020, to notify him of his underlying health concerns and tell him that he would not be able to attend work for the next two weeks due to lockdown. The claimant sought to agree a period of unpaid leave. This was agreed over the phone and the claimant was not added to the work rota. The claimant contacted his line manager again to request a further week’s leave as the lockdown rules had not eased and again this was agreed over the phone. The claimant refers to the respondent’s email rota confirmation stating, ‘30 March 2020 to 5 April 2020 - you are not scheduled for any shifts’ and the rota confirmation ‘6 April 2020 to 12 April 2020 -you are not scheduled for any shifts’.[13]The claimant wrote to the respondent on 12 April 2020 requested to be placed on furlough leave. He received a response from Mr Hezili on 5 May 2020, dated 1 May 2020 refusing the furlough request but stating inter-alia: a. ‘The company is willing to afford you leave without pay should you still wish not to attend work while under lockdown conditions. If however you wish to come back to work, you just need to contact your store manager and make the necessary arrangements with him.’[14]The claimant believed that the respondent had agreed to his absence from work by reference to the letter of 5 May 2020. The claimant was waiting for the lockdown rules to be eased before returning to work. The claimant did not consider his absence to be unauthorised and he was in regular contact with his line manager, Mr Iqbal.[15]Mr Hezili said that, by 21 May 2020 he had heard nothing from the claimant, so he contacted him and made it clear that the situation could not go on indefinitely. I was referred to Mr Hezili’s email of 21 May 2020 when he states, ‘….I would be grateful if you could respond to the options you were offered so we can agree on how to proceed going forward. Your absence without any valid reason and our offer of approved leave cannot be indefinite especially in view of your failure to communicate with us.’[16]The claimant responded by way of letter dated 26 May. He confirms that he has not provided a medical certificate and has not requested statutory sick pay. He requests to be furloughed. He also states that he intends to return to work once the government guidelines been relaxed and does not believe that the measures in the store are sufficient enough to protect him and practice social distancing within a small environment.[17]Mr Hezili writes to the claimant on 29 May 2020. He states:a. You did not turn up for work since 23 March 2020 and did not provide any evidence for your absence.b. On 12 April 2020 you send an email request to be furloughed.c. On 5 May 2020 you were sent an email with the outcome of your furlough request and an agreement to some approved leave during this lockdown conditionsd. on 26 May 2020 replied indicating your refusal to attend work with no timescale of when to return back to work.e. ……. We now consider your absence to be unjustified and we ask that you return to work for the week commencing 1 June 2020 is failing to do so may result in as taking disciplinary action against you.[18]The claimant responded on 1 June 2020. He requests that his previous correspondence is reread, he notes that he has been offered 12 hours work for that week and questions whether the respondent have enough work to provide him. He complains about the way in which the situation is managed and a lack of communication from the respondent. He says ‘I will be returning to work once the government guidelines have been relaxed, at this moment in time, I strongly do believe that Pizza Hut are not doing everything possible to maintain social distancing within the workplace……… You and your company know that I have heart disease issues, this is causing me extra stress, which I do not need…..’[19]The claimant told the tribunal that he was afraid to go to work because of his underlying heart condition, however he was poor and had to pay the bills and support his family. The offer of 12 hours work for the first week in June was below his normal allocation of hours work by the respondent. It was insufficient hours to make ends meet and when viewed alongside the risk he was taking with his health, he declined it. This was the only time that the claimant had been placed on the rota by the respondent between 23 March 2020 and his dismissal.[20]On 23 June 2020 the respondent sent the claimant a letter inviting him to attend a disciplinary meeting on 25 June 2020. The letter says that the allegation may result in the claimant being issued with a disciplinary sanction up to and including dismissal. The purpose of the hearing was said to be to provide the claimant with an opportunity to present an explanation for the following:a. serious breach of contract in that you have failed to attend work since 23 March 2020;b. unauthorised absence since 23 March 2020.[21]As the government had eased lockdown conditions from 23 June 2020, the claimant was willing to return to work and asked to be placed on the rota. He replied to the respondent by letter of 24 June 2020 this letter states inter-alia, ‘.. It is around unprecedented times like this when you realise how selfish a person is. I have noticed that the whole world is helping one another in these difficult times, yet you are very unhelpful, unprofessional and selfish…’. The claimant says that he is unable to attend this meeting as he has a full-time job elsewhere and has been given less than 48 hours notice. The claimant states ‘there is no unauthorised absence as I have contacted you and kept you informed about my situation…… I will be willing to come to work if you can add me to the rota from next week, if you cannot meet these requirements then please accept this as letter of my resignation. The decision is in your hands, please stop giving me stress over this situation, as you know that I have heart disease.’[22]I was provided with documentation showing that the claimant attended the accident and emergency department in the Luton and Dunstable University Hospital on 26 June 2020 with chest pain. He was discharged on the same day. Mr Hezili wrote to the claimant on 26 June 2020 rearranging the meeting for 1 July 2020. The claimant responded on 29 June 2020 stating inter-alia, ‘…. I do not think you understand how much stress you are putting on me over this silly disciplinary… I have been feeling restless and having a lot of chest pains because of this. Your letter dated 26 June made me feel unwell …. I had to go into A&E in the ambulance where they had to check irregular reading in my heart… I have attached the hospital discharge letter ... I hope this letter shows you how much stress you are putting on me over this. I am therefore requesting you to leave me alone and not give me any stress over this. Your accusations are invalid and I have done nothing wrong. I will not be attending the disciplinary hearing nor would I be attending any future hearings. By letter on 24 June clearly mentions that I am available for work and have requested you to put me on the rota. Please do put me on the rota, as I am available to work immediately……’. No steps were taken by the respondent to place the claimant on the work rota as he had requested.[23]By letter dated 8 July 2020 Mr Hezili rearranged the disciplinary hearing to Wednesday 15 July. The disciplinary allegations were those are set out above along with a further allegation: Wilful refusal of a reasonable management instruction in that you failed to attend the disciplinary hearing on I July without a reasonable explanation. Mr Hezili told the tribunal that he ‘didn’t mind’ that the disciplinary hearing of 1 July was rearranged. However, he considered it misconduct on the claimant’s part because the claimant had not been kept in hospital on 26 June but was discharged on the same day and therefore the claimant could and should have attended the hearing. Mr Hezili said it was reported to him by the claimant’s manager that he had a new travel agency shop in Luton and was refusing to come to work but was working elsewhere. This indicated that the claimant was able to attend work but chose not to. The claimant was cross-examined in relation to alternative employment from March 2020. He told the tribunal that he continued to work on his own business from home during this time but did not ‘a new travel agency shop in Luton’ as alleged by Mr Hezili.[24]There was some correspondence between the parties and the disciplinary hearing was eventually agreed to take place on 19 July 2020. I was referred to disciplinary meeting minutes that note that the claimant explained his absence from work as he had been in contact with his manager informing him of his heart problem. The claimant did not have a shielding letter nor did he have an ‘isolation note’. His advice from his doctor was that if he did not feel it was safe for him to go to work, he should not go. Mr Hezili says that he was aware the claimant said he had a heart condition and that was not an issue however he had not received any information or proof that it was stopping him coming to work. Mr Hezili was unable to say whether he believed or did not believe that the claimant had an underlying heart condition. He told the tribunal that he had no proof of that fact as he was not a doctor. He had no evidence of the claimant’s heart condition. He denied that the claimant had submitted the letter dated 26 October 2016 from his GP as alleged. The disciplinary note records the parties discussing the correspondences outlined above. The claimant says that he did not attend the disciplinary meeting rescheduled for 1 July as he had gone to the hospital because of stress and he could not attend the meeting. The claimant emailed Mr Hezili following the disciplinary adding various points including that he had contacted his manager and 20 and 21 June, messaged and telephoned him on 23 June.[25]Mr Hezili told the tribunal that an investigation was carried out into the disciplinary allegations by the claimant’s manager. Mr Hezili had discussed the matter with the claimant’s manager. There was no evidence available to the tribunal from the claimant’s manager either by way of witness statement or any documentary evidence within the bundle. No documentary evidence was provided to the claimant relating to any investigation carried out prior to the disciplinary process.[26]Mr Hezili wrote to the claimant on 23 July 2020 summarily terminating his contract with immediate effect on the basis of gross misconduct. This letter sets out the justification for dismissal as:a. In relation to failure to attend work since 23 March 2020: it was the claimant’s decision not to attend work. This is not supported by a doctor’s note or NHS shielding letter, ‘despite your claim that you have a heart condition’. This letter notes, ‘..The company did agree to having time off which you failed to even acknowledge or respond and persisted on your refusal to attend work even when put on the schedule.’b. The claimant told his manager that he was not coming to work under lockdown is completely over and until he felt safe to come to work. This is not accepted as his manager did not authorise his absence.c. In relation to failure to attend the disciplinary hearing on 1 July without a reasonable explanation, the letter acknowledges that the claimant went to hospital on 26 July 2020 but states that his condition was stable and he was discharged quickly from hospital. The claimant had previously said that he was ready to come to work and therefore could have attended the disciplinary meeting on 1 July as requested.d. The letter states that the claimant did not provide any proof to justify his decision not to come to work such as a doctor’s note or an NHS 111 shielding letter. No one in the company approved his absence. He did not attend the hearing of 1 July 2020 because he considered it to be silly and not worth his time. There were references to the claimants other businesses references to the claimant choosing to concentrate on other businesses.e. The claimant was informed of his right to appeal.[27]Within his witness statement Mr Hezili says that the claimant has provided no reasonable explanation for continued unauthorised absence and frustrated that reasonable attempts to progress the disciplinary process. Mr Hezili said that there had been no agreement at all with the claimant relating to any absence from work and the claimant had unilaterally informed the respondent of his unwillingness to attend the workplace. If the claimant had been required to shield it would have been remarkably easy for him to get proof of this. Indeed, the claimant states that he discussed matters with his doctor, so it is inconceivable that he could not have arranged a letter to be emailed to him and then on to us. Mr Hezili was also concerned about the claimant’s attitude towards him and the company generally. He did not see how it would be possible to continue to work with somebody who feels they can simply ignore reasonable requests from an employer.[28]The claimant attended an appeal meeting with Mr Dogankaya. Mr Dogankaya provided a very brief statement to the tribunal. He says that he took time to consider the matters carefully and decided the claimant’s appeal should be dismissed. It can be seen from the minutes that the claimant says, during the appeal meeting, that he could not attend work until the guidelines had relaxed. His heart condition and his medication were discussed. The claimant said he was not able to attend work and his time off work was authorised and accepted at the time. He had not been put on the work rota. The claimant had also submitted a written note of his grounds of appeal. Mr Dogankaya wrote to the claimant on 22 August 2020 upholding the decision to terminate his contract by reason of gross misconduct. The gist of the appeal letter was that it was not accepted that the claimant’s time off work was agreed because this had been the claimant’s choice and he refused to attend work during the pandemic. The claimant’s claim that his doctor told him not to go to work is not supported by any doctor’s note, nor did the claimant get shielding papers from NHS 111. The letter states that the claimant’s manager did not authorise his absence because the claimant informed his manager of the claimant’s decision not to come to work.[29]Mr Dogankaya told the tribunal that Mr Hezili was mistaken in is evidence in that Mr Dogankaya had seen the letter dated 26 October 2016 submitted by the claimant to the respondent on an unrelated matter prior to the pandemic. Deliberations and findings[30]I have carefully considered the entirety of the evidence provided alongside the available contemporaneous documentation. The respondent is a large organisation with considerable administrative resources. In general terms, I considered the respondent’s evidence to be brief, vague, muddled and difficult to follow. The claimant’s evidence was consistent throughout. I find on the balance of probability that:a. following the government announcement of lockdown in March 2020due to the Covid 19 pandemic, the claimant contacted his line manager as he has claimed, he explained his underlying medical condition and concern in relation to attending work. It was agreed by his line manager that he would not be allocated work. The claimant was absent from work with the agreement of the respondent from 23 March 2020. It was agreed that this time would be unpaid.b. The respondent’s business was unaffected by the lockdown and the respondent’s requirements remained unchanged.c. By letter dated 1 May 2020, Mr Hezili formalised the agreement with the claimant in writing, by stating that, ‘The company is willing to afford you leave without pay should you still wish not to attend work while under lockdown conditions. If however you wish to come back to work, you just need to contact your store manager and make the necessary arrangements with him.’ This letter constituted an agreement between the parties that the claimant was not required to attend work while under ‘lockdown conditions’. The agreement was not open ended, it was tied to the imposition of ‘lockdown conditions’. The respondent’s argument that there was no real agreement between the parties due to the claimant indicating he would not attend work in any event, is not accepted. If it was the case that the respondent did not agree to the claimant’s request for unpaid time off work, the onus was upon the respondent to inform the claimant of that fact promptly following 23 March 2020. Further, it would be expected that the claimant would be put on the rota in accordance with the normal arrangements. The respondent took none of these steps.d. The claimant genuinely believed that there was no unauthorised absence or disciplinary case to answer as his leave had been authorised by the respondent while under ‘lockdown conditions’. The claimant understood that lockdown conditions had been eased on 23 June 2020 and the claimant told the respondent in writing on 24 June 2020 ‘there is no unauthorised absence as I have contacted you and kept you informed about my situation…… I will be willing to come to work if you can add me to the rota from next week. The claimant was available for work, subject to being put on the rota by the respondent on 28 June 2020. This timing corresponds with the easing of lockdown conditions as announced by the Prime Minister on 23 June 2020.e. The claimant had a pre-existing underlying heart condition. The respondent had been provided with medical evidence indicating that the claimant had a pre-existing heart condition by way of his driver’s declaration completed in 2019, his letter from his GP and also repeated comments and his visit to A&E during the disciplinary process. The respondent was or ought reasonably to have been aware of the same. The claimant was not advised to shield, nor was the claimant advised to self-isolate. The claimant’s medical advice from his GP was to go to work should he feel safe but to stay at home should he feel the workplace was unsafe. This advice is unsurprising, as the government information at the time was that those with underlying health conditions were at an increased risk of becoming seriously ill should they contract Covid 19.[31]The respondents allege that the claimant was dismissed for reasons relating to his conduct. In particular: breach of contract/ unauthorised absence by way of failure to attend work since 23 March 2020; and wilful refusal to follow a reasonable management instruction to attend disciplinary hearings on 1 July 2020. Did the respondent have a genuine belief that the claimant was guilty of the misconduct for which he was dismissed? It was submitted by Mr Morley that the respondent does not take issue with the absence between 23 March up to mid-May, but the respondent’s letter of 29 May could not be clearer in that the absence was now considered to be unauthorised and that the claimant was put on the rota for 12 hours following the respondent’s letter of 29 May. I do not accept the submission as it is not consistent with the respondent’s evidence. Mr Hezili’s allegations of misconduct expressly encompassed the period of absence from 23 March and he continues to rely upon his argument that no real agreement had been in existence with the claimant. Mr Hezili’s letter of 29 May is confused and confusing. Mr Hezili did not identify a more nuanced argument in relation to any shorter later period of absence. Mr Hezili ignored the claimant’s repeated requests from 24 June 2020 to put him on the rota. Taking the entirety of the above into account, I conclude that Mr Hezili had no genuine belief that the claimant was guilty of the misconduct for which he was dismissed. For the sake of completeness, I go on to consider the remaining issues.[32]Was that belief formed after a fair and adequate investigation? I was told by Mr Hezili that the claimant’s manager had conducted an investigation and they had discussed this investigation. There was no supporting evidence to suggest that this was the case and there was no reference to any investigation made by the respondent in its correspondence with the claimant. On the balance of probability, I conclude that the respondent carried out no investigation into the alleged misconduct on the claimant’s part. Mr Morley submitted that an investigation was not required as there is not much in dispute between the parties and the facts were straightforward, the initial period of absence was not in issue, and the respondent’s actions falls within the band of reasonable responses. I conclude that these are circumstances where an investigation could have:a. explored and clarified the allegations of misconduct;b. explored the claimant’s reasonable understanding in relation to what had and had not been agreed and taken evidence from the claimant’s line manager in relation to what had and had not been agreed;c. explored the claimant’s reason for absence including any other or new businesses, and whether those businesses played any part in the claimant’s absence from work as alleged by Mr Hezili;d. explored the claimant’s health condition and medical reasons for non-attendance at work, taking into account the government guidance;e. identified the difference between the claimant’s position as somebody with an underlying health condition as opposed to those who had been advised to shield or those advised to isolate;f. sought medical evidence should the claimant’s advice from his GP, that he should not attend work should he feel it unsafe to do so, not be accepted as genuine by the respondent;g. addressed and sought to mitigate any increased risk on the part of the claimant;h. explored the practical covid related arrangements and risk assessments (if any) carried out at the claimant’s workplace including the particular concerns raised by the claimant in relation to social distancing within a small workplace;i. explored, as a large employer, the possibility of alternative duties with a reduced risk to the claimant;j. explored the reasons behind the claimant’s failure to attend the disciplinary meeting.[33]I conclude that the respondent’s failure to conduct any investigation prior to the claimant’s dismissal falls outside the band of reasonable responses of a reasonable employer.[34]In reaching the decision to dismiss, did the respondent follow a fair procedure? In light of my findings set out above, I conclude that the respondent did not follow a fair procedure. The correspondence with the claimant was confused by repeated references to unauthorised absence by Mr Hezili where Mr Hezili had authorised that absence in writing. There was no investigation. I consider that the procedural flaws within this disciplinary process are sufficient to render the dismissal unfair.[35]Was the dismissal within the band of reasonable responses open to an employer in the circumstances? The respondent’s disciplinary allegations were: Unauthorised absence from 23 March 2020; and failure to attend the disciplinary hearing on 1 July 2020 without reasonable excuse. I note that:a. The respondent had agreed to a period of unpaid leave ‘while under lockdown conditions’. The respondent’s insistence that the period of time from 23 March 2020 was ‘unauthorised absence’ in circumstances where Mr Hezili had himself authorised the absence in writing, created a large degree of confusion that has clouded every part of this disciplinary process.b. The claimant consistently informed the respondent that he had an underlying heart condition. He requested unpaid leave from work on the basis that he was afraid to attend the respondent’s workplace. The claimants underlying health condition meant that should he get Covid, he was at risk of suffering more severe consequences, than an average person without an underlying health condition. Mr Hezili’s position was that ‘he was not a doctor and did not know’ if the claimant had an underlying heart condition. I have found that he was ought to have been aware of the claimant’s medical condition. Mr Hezili’s ought to have been aware of the additional risk posed to those with underlying health conditions. Mr Hezili took no steps to engage with the claimant’s concerns or identify, assess and mitigate any potential risk posed to the claimant.c. The respondent’s conflating of the claimant’s position of having an underlying medical issue with those requested to shield or selfisolate and failure to acknowledge the potential impact of the claimants underlying health issue, indicates a wilful misunderstanding on the respondent’s part of the claimant’s consistent position and causes further confusion.d. The respondent, without investigation, concluded that the claimant was absent from work because he had opened a new travel shop in Luton. This is denied by the claimant. There was no investigation into this allegation and on a general level it is most unlikely that the claimant would have chosen to open a new travel business/shop in a time of general lockdown and global pandemic when travel was limited on a global scale. Further, the claimant had prior to this disciplinary matter undertaken alternative work alongside his rota hours and this was not prohibited by the respondent. There was no evidence provided by the respondent either at the time of the disciplinary process or during the hearing, to suggest that the claimant’s absence was related to anything other than his stated concerns relating to his underlying health conditions and risk of contracting Covid within the respondent’s workplace.e. Mr Hezili told the tribunal that he ‘didn’t mind’ that the disciplinary hearing of 1 July 2020 was rearranged. The claimant had in June 2020 told Mr Hezili that he was willing to return to work and asked to be put on the rota. The claimant subsequently attended the rearranged disciplinary meeting and participated fully within the respondent’s processes.[36]Taking the entirety of the evidence into consideration and the fact that the respondent is a large organisation with substantial resources, I conclude that the respondent’s decision to dismiss the claimant in these circumstances falls outside the range of reasonable responses of a reasonable employer.[37]I have considered the respondent’s evidence in relation to the appeal process. I repeat my findings in relation to the original decision as set out above. The appeal was little more than a rubber stamp and did not in any way address any of the inadequacies identified within the original disciplinary process. The appeal cannot salvage the finding of unfair dismissal in these circumstances.[38]Did the claimant cause or contribute to the dismissal and if so by how much should the basic and compensatory award be reduced? I repeat my findings set out above. It was the claimant’s genuine belief that he had agreed with his employer to a period of unpaid leave from his job until ‘lockdown conditions eased’, There was some easing of the government guidance announced on 23 June 2020 and at this time the claimant indicated his willingness to return to work. The disciplinary process was flawed and confused from the outset and the confusion clouded all other issues. Taking the entirety of the evidence into account, I do not consider that there has been a culpable or blameworthy aspect to the claimant’s behaviour and in the circumstances, I conclude that the claimant did not cause or contribute to his dismissal.[39]As I have found that the dismissal was unfair due to the respondent following an unfair procedure, was there a chance that the claimant would have been dismissed in any event and that the employer's procedural errors accordingly made no difference to the outcome? I repeat the findings set out above and conclude that this is the case where the flaws in the process were substantial and it is not possible to conclude that the claimant would have been dismissed in any event.[40]Mr Morley submitted that the claimant’s behaviour and language used in his correspondence to the respondent has resulted in the breakdown of the relationship between employer and employee. When considering the entirety of the evidence available and repeating the facts as found above, I conclude that the responsibility for any straining of the employment relationship arises from the confusion caused by the respondent. The claimant is communicating in a second language and the comments in relation to unhelpful conduct during a pandemic, ‘.. It is around unprecedented times like this when you realise how selfish a person is. I have noticed that the whole world is helping one another in these difficult times, yet you are very unhelpful, unprofessional and selfish…’, reflect the reality of the circumstances with which he was faced. He has also called the disciplinary process ‘silly’. In light of the fact that the entire disciplinary process, carried out in the eye of a pandemic, has been constructed around a period of agreed unpaid absence, I consider his comments to be mild. I conclude that there is no conduct on the part of the claimant that would result in an irretrievable breakdown of his relationship with the respondent.[41]Turning to the claimant’s wrongful dismissal claim, I repeat the findings I have made above in relation to the unfair dismissal claim. I conclude, on the balance of probability, that the claimant was not guilty of gross misconduct. The claimant was entitled to his notice period on the termination of his employment.[42]For the avoidance of doubt, I confirm that I have not addressed what if any uplift to make to the claimant’s award due to failure on the respondent’s part to follow the ACAS code on disciplinary and grievance matters in accordance with the provisions of Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. The tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%. Submissions will be invited on this matter at the forthcoming remedy hearing.
Conclusion
[43]The claimant was unfairly dismissed contrary to S98 of the Employment Rights Act 1996. The claimant was wrongfully dismissed in breach of his contract. This matter will be set down for a remedy hearing and a case management order will be sent to the parties under separate cover.
Conclusion
[1]The respondent must within 28 days of the date of this judgement pay the total amount of £7933.50 to the claimant.[2]The above sum is calculated as follows:a. wrongful dismissal compensation in the agreed sum of £508;b. unfair dismissal award, comprised of: i) a basic award of £571.50; ii) loss of statutory rights awarded at £250; iii) a compensatory award £6604 (inclusive of an uplift under Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 of 15% but limited to the statutory cap).