Mr E Kapllani v Booker Ltd: 3311518/2023 Mr E Kapllani v Booker Ltd: 3311518/2023
JUDGMENT
The claim of unfair dismissal is dismissed.REASONS
[1]The Respondent is a Food and Drinks logistics business.[2]The Claimant was employed by the Respondent as a Warehouse Operative from 21 August 2011 until his dismissal with effect from 25 August 2023.[3]ACAS Conciliation took place between 26 August 2023 and 7 October 2023.[4]On 8 October 2023 the Claimant brought a claim for unfair dismissal pursuant to s.111 Employment Rights Act 1996 (ERA).[5]I heard evidence from the Claimant and from Mr Adam Woods, Warehouse Manager of the Respondent, and was also referred to a bundle of documents. On the basis of that evidence, I make the following findings of fact. The Facts The Flex Policy 1 of 6The Facts
[6]The Claimant was employed pursuant to a contract of employment that provided he normally worked 44 hours per week.[7]However, since 2014 the Respondent has operated a policy known as the Warehouse Flex Peak Agreement (“the Flex Policy’) which is a collective agreement. I heard evidence that all employees were paid a one-off payment when that policy became incorporated into their contracts of employment in 2014, and I consider it more likely than not that the same payment was also made to the Claimant.[8]The version of the policy in operation at the date of the Claimant’s dismissal was the one that had been in operation since 2018.[9]The purpose of the policy is to address the peaks and troughs of demand at the warehouse.[10]It gives management the discretion to reduce an employee’s working day by up to 2 hours per day (“flex-down”). The hours accrued are placed into a “bank” and the employee can be requested to work those additional hours in peak weeks (“flex-up”). Prior to 2018 employees could be required to flex-up or flexdown at any time, however after 2018, although employees could still be flexed down at any time, they could only be flexed up during 14 weeks of the year, the peak periods.[11]An employee such as the Claimant is paid at their normal rate of 44 hours per week regardless of whether they have been required to flex-down or flex-up and have therefore worked less or more than 44 hours in any particular week.[12]Further, under the Flex Policy the maximum number of hours an employee can be requested to work in any week is 50 hours and any additional hours are paid at the overtime rate. Similarly, any hours worked in excess of an employee’s banked hours, or in excess of normal hours during non-peak periods, are paid at the overtime rate.[13]An individual can decline a request to flex-up, but they are only entitled to do so three times per year.[14]As stated above, the Flex Policy is a collective agreement which is incorporated into employees’ contracts of employment and, specifically, was incorporated into the Claimant’s contract of employment pursuant to clause 14 thereof.[15]At the start of each “flex year” there is an official “read out” to the employees who will be required to flex which is signed off by the Union Representatives. This informs the employees of the peak period where they will be required to flex-up and work additional hours. Employees are told that they will be informed roughly one week before the peak period begins of the days that they will be required to flex-up.[16]Employees can request to opt out of the Flex Policy altogether, but the request must be submitted in accordance with the Respondent’s flexible working request policy, and such a request would then be considered by management. Chronology[17]Historically, although the Flex Policy had been operational since 2014, employees were not required to flex during the years of the Covid pandemic. 2 of 6 However, from 2022 onwards, when normal working resumed after the pandemic, work volumes were such that the Respondent had cause to make greater use of the Flex Policy than they had in the years before the Pandemic.[18]On 13 March 2023 the Claimant complained “I am not happy at work, they force me to leave work before completing the hours”.[19]On 15 March 2023, a manager named Micky Yeatman, invited the Claimant to a meeting and explained the Flex Policy to him.[20]On 19 March 2023, the Claimant complained that he was “not happy” with what “Micky Yeatman did on 15 March 2023”. The Claimant was told the Respondent could arrange for a different manager to talk through the Flex Policy with him.[21]In the event on 24 March 2023 the Claimant raised a formal grievance in relation to the above incidents.[22]By letter dated 29 March 2023 he was invited to a Grievance Hearing with Philip Cooper, Facilities Manager, on 4 April 2023. The Claimant stated that he had been asked to flex-down and leave work, and that although he understood the Flex Policy, he did not want to do this anymore. The Claimant was informed he would have to make a written request to come out of the policy, but he said he didn’t see why he had to do that.[23]On 4 May 2023 the Respondent wrote to the Claimant rejecting his grievance. He was told that on the day in question he had been asked to flex down along with 18 other colleagues and that the request had been in accordance with the Flex Policy that was part of his contract.[24]On 14 May 2023 the Claimant appealed that decision. The appeal was heard by Nick Lappage, Transport Manager, on 8 June 2023, and on 7 July 2023 the Claimant was informed that his grievance had not been upheld.[25]On 2 August 2023 the Claimant was invited to an investigation in relation to him failing to flex-up on 30 & 31 July 2023 and leaving the site without permission. The reason he gave was that that “he would not work for free”. The Claimant was told that he was in breach of contract for refusing to flex-up.[26]On 4 August 2023 the Claimant was invited to a disciplinary hearing for “alleged Gross Misconduct – Leaving the site without permission and failure to flex-up”.[27]The hearing took place on 8 August 2023 and was chaired by David Upton, Transport Shift Manager. Mr Upton adjourned the meeting to consider the points the Claimant had made and further investigate.[28]At the reconvened hearing on 16 August 2023 Mr Upton concluded that it was part of the Claimant’s contractual duties to flex-up according to the Flex Policy and that the Claimant was aware of this. Further the fact the Claimant had left the site without authorization and without telling anyone was a breach of health and safety. It was explained to the Claimant that he was not working for free as he owed the Respondent hours, having previously been flexed down. The Claimant was given a 12-month Final Written Warning.[29]On 17 August 2023 the Claimant was again asked to flex-up and again failed to do so. 3 of 6[30]On 21 August 2023 the Respondent investigated the incident and found the Claimant had failed to flex-up and left the site without permission. Again, the Claimant stated that “he was not working for free”.[31]On 22 August 2023 the Claimant was asked to attend a disciplinary hearing on 25 August 2023 with Adam Woods, Warehouse Manager, to answer a charge of ‘Continued Gross Misconduct – Leaving the site without permission and failure to flex-up”.[32]At the hearing, the Claimant said he was asked to flex all the time and not just in the 14-week peak periods.[33]Mr Woods explained that under the Flex Policy the Claimant could be required to flex down for a maximum of 2 hours as and when required throughout the year, so long as 24 hours’ notice was given, it was only the requirement to flexup that was restricted to the 14-week peak periods.[34]Mr Woods stated that before a flex period employees are sent a brief of when the flex period is to start, and the Claimant confirmed he had heard the brief. Mr Woods further explained that after the flex period, the working pattern goes back to 44 hours per week and then other hours worked are paid in overtime, but that he could be flexed down at any time throughout the year. Since the Claimant had been asked to flex-up during a flex-period he was not entitled to be paid overtime.[35]The Claimant said he did not owe the Respondent any hours, however Mr Woods informed him that he owed the Respondent 14 hours from occasions when he had been required to flex-down. He also told the Claimant that leaving the site unauthorized and without telling anyone was a breach of health and safety as in the event of a fire he might thought to be in the building. The Claimant told Mr Woods ‘Do whatever you want. I will not flex. I will not change my opinion”. That he was “here to do my 44 hours like my contract” and “was not working for free”.[36]After adjourning to consider the outcome, Mr Woods informed the Claimant he was being dismissed with immediate effect for gross misconduct. He considered the Claimant had failed to flex as required by his contract and had also failed to inform anyone he was leaving the site, which was a breach of health and safety. Further the Claimant was already on a Final Written Warning for effectively the same behaviour, and had made it clear he had no intention of complying with the Flex Policy going forward. Subsequently, a letter dated 25 August 2023 was sent to the Claimant confirming the dismissal and the reasons for it.Conclusions
[37]The first question is whether the Claimant was dismissed for a potentially fair reason pursuant to s.98(2)(b) of the Employment Rights Act (“ERA”) 1996.[38]The Respondent says that the Claimant was dismissed for failing to comply with the terms of his contract, namely the Flex Policy, and for leaving the site without permission causing a health and safety issue.[39]For the reasons set out above, on the evidence before me I am satisfied that the Flex Policy formed part of the Claimant’s contract of employment. It was a 4 of 6 collective agreement which had been incorporated into his contract of employment and entitled the Respondent to require the Claimant to work less or more than 44 hours per week (his normal working hours) in accordance with the terms of the policy.[40]I am also satisfied that this was the principal reason for the Claimant’s dismissal. Although the Claimant said the Respondent wanted an excuse to get rid of him because of a wages’ claim he had brought in the Employment Tribunal in relation to sick pay, which had been heard and dismissed in March 2023, there is no dispute of fact that the Claimant had refused to flex-up when asked to do so on 30, 31 July and 7 August 2023. Further there is no evidence of other employees refusing to comply with the Flex Policy and not having disciplinary action taken against them or any other evidence to suggest that these disciplinary proceedings were brought against the Claimant for a reason other than his repeated refusal to flex-up.[41]Since failing to comply with the terms of his contract, and acting in breach of health and safety requirements, was plainly a matter of conduct, it follows the Claimant was dismissed for a reason relating to his conduct, which is a potentially fair reason within s.98(2)(b) ERA.[42]The next question is whether the Respondent acted reasonably in treating this reason as a sufficient reason for dismissing the Claimant, taking into account its size and administrative resources and having regard to equity and the substantial merits of the case within the meaning of s.98(4) ERA?[43]First, there is no question that the Claimant was guilty of the misconduct alleged in that it is common ground that he failed to flex-up when requested and left the Respondent’s premises without telling anyone.[44]Secondly, I am satisfied that the Respondent carried out a reasonable investigation into the surrounding circumstances in that it satisfied itself the Claimant had been aware of the Flex Policy and how it operated. Indeed, there is no doubt the Claimant was fully aware of the policy because it had been discussed with him earlier the same year in his meetings with managers in March, and also in the context of his grievance.[45]In this respect, although the Claimant repeated at various times during the grievance and disciplinary hearings – and in this hearing – that the Respondent wanted him to work 6 hours a week for free, I am satisfied that he understood that the extra hours he was being asked to work were ‘banked hours’ – that is hours he had already been paid for but not worked (because he had been asked to flex-down). His real objection was that since he hadn’t asked to work less than 44 hrs in the weeks he had been asked to flex-down, the Respondent shouldn’t be entitled to ask him to work more than 44 hours in any week without paying him more. However, the Respondent was so entitled because of the Flex Policy, which as I have found, was incorporated into the Claimant’s contract of employment.[46]I have also considered whether there was any evidence to suggest the Claimant’s managers had manipulated the Flex Policy unfairly against him – such as by singling him out to flex-up or flex-down, particularly from March 2023 onwards (because of his Employment Tribunal case) – which Mr Woods should 5 of 6 have investigated. However, there is no such evidence. In his disciplinary hearing with Mr Woods the Claimant is recorded as referring to repeatedly having been required to flex up or down long before March 2023. Further, while in his grievance the Claimant complained that on 9 March 2023 he had been the only employee required to flex down, a letter from Mr Cooper of 4 May 2023 states he had looked into the matter and found that 18 of the Claimant’s colleagues had also been asked to flex down that same day (and that letter attaches the relevant report pertaining to that day).[47]Thirdly, I am satisfied the Respondent followed a fair procedure before dismissing the Claimant and indeed it has not been suggested otherwise.[48]Finally, as regards whether the decision to dismiss was within the band of reasonable responses which a reasonable employer might have adopted, I note that the Claimant had already been issued with the Final Written Warning in respect of the same matter. Further he made it clear to Mr Woods in the disciplinary meeting that he was not going to comply with the Flex Policy going forwards. In these circumstances I am satisfied that dismissal was well within the range of reasonable responses open to a reasonable employer.[49]It follows that the claim for unfair dismissal is dismissed.