Mr W Winczewski v MAM Transport Services Ltd: 3311620/2021

EMPLOYMENT TRIBUNALS

Case No 3311620/2021

Between

Mr W WinczewskiClaimant

MAM Transport Services LtdRespondent

Before

Employment Judge Dobbie

Members

Mr Vaghela and Mrs Smith

Date 11 November 2022

JUDGMENT

[1]The Claimant’s claim for unfair dismissal is well-founded and is upheld.

[2]The Claimant’s claim for notice pay is well-founded and is upheld

[3]The Claimant’s claim for wages is upheld for the period from 22 April 2021 to date of termination and all other claims for wages are dismissed.

[4]The Claimant’s claim for race discrimination based on discriminatory dismissal is not upheld and is dismissed. JUDGMENT having been sent to the parties on 25 November 2022 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]By a claim form presented to the tribunal on 14 June 2021, following ACAS Early Conciliation from 20 May to 7 June 2021, the Claimant brought claims for:(a) Unfair dismissal;

(b) Direct race discrimination (dismissal only);

(d) Holiday pay; and

(e) Unpaid wages.

[2]At the final hearing, the Claimant’s representative withdrew the claim for holiday pay and it was dismissed in an associated judgment.

[3]The issues were recorded by Employment Judge Anderson in an order hearing on 8 February 2022. The parties confirmed these were correct at the outset of the final hearing.

[4]The final hearing was listed as an in-person hearing, but due to the illhealth of the Respondent’s director and witness, Mr Abdullah, the hearing proceeded (by consent) as a hybrid hearing, with Mr Abdullah and his witnesses participating by video, and all other attendees appearing in Cambridge Employment Tribunal in person.

[5]References in square brackets below are to page numbers of the hearing bundle.

FINDINGS OF FACT

[6]The Respondent is a distribution company that operates in the UK and Europe. It employs HGV drivers to drive its fleet of vehicles. It is a relatively small company with approximately 10 office-based workers and 45-50 employees in total.

[7]On 14 November 2008, the Claimant commenced working for the Respondent as a class 1 HGV driver.

[8]In March 2020, the Claimant had 12 weeks off work on statutory sick pay (not furlough) due to the fact that he suffers various conditions that made him more vulnerable to Covid-19 than others not suffering his conditions. However, he did not receive a shielding letter from the NHS and this is why the Respondent says it did not place him on furlough.

[9]In or around July 2020, the Claimant returned to work as normal, as lockdown restrictions lifted.

[10]Between 20 July 2020 and 10 August 2020, the Claimant had a threeweek period of annual leave that had been authorised in January 2020. It is noteworthy that he had originally requested four consecutive weeks’ leave but only three weeks had been granted.

[11]On 3 August 2020, whilst on leave in Poland, the Claimant suffered a fall and seriously injured his back

[12]On 4 August 2020, the Claimant’s son, Lukasz Winczewski, informed the Respondent of the Claimant’s condition. Lukasz Winczewski sensed distrust from Mumtaz Abdullah (Company Secretary and Key Account Manager) who requested proof of his admission to hospital. We find that at this stage, the Respondent did not trust that the Claimant was being honest about his injury and that the Respondent suspected the Claimant was feigning an injury to ensure he had the full four weeks in Poland that he had originally requested, but which had been partly refused.

[13]At some point, the exact date of which is unknown, Lukasz Winczewski provided the Respondent with a copy of the Claimant’s hospital admission certificate, in Polish and with a certified translation in English, which stated that the Claimant had been admitted to hospital (Department of Neurosurgery and Neoplasms of the Nervous System) in Lodz, Poland on 4 August 2020.

[14]From 20 August 2020 to 18 May 2021, the Claimant provided a series of consecutive fit notes from his UK GP stating he was unfit for work due to a “vertebral fracture”. The Claimant was placed on statutory sick pay, from 4 August 2020 until 6 October 2020 (when his entitlement to SSP is said to have expired).

[15]On 30 November 2020, Lukasz Winczewski informed the Respondent that the Claimant had suffered a deterioration in his condition and would not be returning to work before early January 2021. On 8 December 2020, Lukasz Winczewski sent the Respondent a fit note covering the Claimant’s absence for late Nov 2020 to 9 January 2021.

[16]In December 2020, the Claimant underwent further surgery in Poland.

[17]On 5 January 2021, Mumtaz Abdullah wrote to Lukasz Winczewski noting that the Claimant was nearing the end of the period he had been signed off sick for in the most recent fit note and requesting a back to work assessment [27]. Lukasz Winczewski replied the same day stating that his father was still unwell in Poland and was due to see a doctor that Friday and he would update her then. Lukasz Winczewski sent her a copy of the hospital discharge note on 5 January 2021. Mumtaz Abdullah replied stating she already had that document and requesting: “a current report when he visits the doctor on Friday as to his situation going forward. Basically full report on the progress of his operation and recovery.” No specific questions were provided by her for the Claimant to ask the doctor, nor did she specify a requirement to inform the doctor of anything specific about the Claimant’s role or duties [26 and 21b].

[18]On 8 January 2021, the Claimant’s doctor advised him that he was not fit to return to work because he could not sit for 20 hours to be able to return to the UK (by car).

[19]Between 8 and 25 January 2021, Lukasz Winczewski spoke to Mumtaz Abdullah on various occasions. In an email of 25 January 2021, she noted a conversation they had had and continued: “Once I have either the report from the consultant or your father returns back to the UK then we will arrange our independent doctor to assess him and verify whether he is able to continue with his job.” [28]

[20]Also on 25 January 2021, Lukasz Winczewski replied that he was chasing the report and hoped to have it to her by Thursday that week and that the Claimant will be ready to see Mumtaz Abdullah on 15 February 2021 (on the basis that his most recent fit note expired on 14 February) [29].

[21]On 26 January 2021, Lukasz Winczewski forwarded to Mumtaz Abdullah what the Polish doctor had sent to him. The document was in fact a 20- page assessment document, with multiple choice questions, in Polish, not a report [31-50]. That afternoon, Mumtaz Abdullah passed the document by email to Justyna Sodel to translate. In her email she already expressed doubts over the document stating “Would you be so kind as to translate this attached document and maybe verify its authenticity due to it being a Word document. It’s supposed to be a medical report from a consultant.” [52]. Justyna replied to Mumtaz Abdullah that “this is a medical test to me, not a report” and translated part of it [51].

[22]On 27 January 2021, Mumtaz Abdullah wrote to Lukasz Winczewski stating the document was not a medical report but a test and that due to this “I will proceed with further action as to why you have tried to produce false report” [53]. To this email, she attached excerpts from the Respondent’s disciplinary policy highlighting parts of the definition of gross misconduct as including “Deliberate falsification of records” and other acts of misconduct [53-54].

[23]Lukasz Winczewski replied by email that same day asking Mumtaz Abdulllah to call him. Later that afternoon, Lukasz Winczewski sent to Mumtaz Abdullah a letter, dated 20 January 2021, in Word format said to be from Maciej Kolasa MD from FMC Centrum Medyczne in Lodz. It was unsigned and not on headed paper. It did not have any form of certification or stamp. It provided a brief overview of the Claimant having had surgery on 8 August 2020 and again in December 2020. It concluded by stating “He does not take painkillers and does not suffer pain anymore. The neurological treatment is finished.” [56].

[24]Mumtaz Abdullah replied to Lukasz Winczewski’s email that evening challenging the authenticity of the letter and stating “before you sent me a false report and now you’re sending through a non bona fides letter”. In respect of the Claimant’s intended return to the UK on or around 15 February 2021, she stated: “we will assess his condition and notify DVLA as well as our insurance. Sorry but I cannot call you, I am very busy. Just please correspond by email only.” [55].

[25]It was clear to the panel that the Respondent lacked trust and confidence in the Claimant by this time. This was evident from the correspondence and also from Mr Abdullah’s live evidence to the tribunal. When he was asked: “the Respondent had the opportunity to ask the Claimant for written consent to contact his doctor?” he replied: “We during this process we had many times asked for various bits and pieces from Mr Winczewski but it did not come in the right time and once we received the false file, my confidence was zero in him”

[26]The tribunal noted that it was on this date, 27 January 2021, that the Respondent first mentioned the DVLA and stated they would do what was required in respect of the Claimant’s licence. In fact, it was the Claimant that had to refer details of his condition to the DVLA and this correspondence from the Respondent could well have misled the Claimant to think that it was being handled by the Respondent and there was nothing for him to do with respect to the DVLA.

[27]The Respondent did not at any time specify what questions it would need a doctor to address, nor did the Respondent’s managers send a list of questions or required information to the Claimant, his son or any of the medical professional she interacted with for example. The Respondent simply made vague statements such as the report needed to cover “full report of your father’s condition and supporting documents to establish he is fit to drive HGV vehicle” [55]. The Respondent could easily have specified questions or provided information to pass to the Claimant’s doctor about his role. (Indeed the Respondent had a document detailing the requirements of role to hand, which was later sent to the Claimant with the subsequent dismissal letter when the Respondent expressed doubt as to what had been conveyed to the medical professionals by the Claimant [78-79], about which see below).

[28]At 20:09 on 27 January 2021, Lukasz Winczewski sent a signed and stamped (certified) version of the same medical letter (dated 20 January 2021) to the Respondent and gave Mumtaz Abdullah the doctor’s contact details stating that the Claimant had given permission to the doctor to speak to the Respondent and noting that he had already supplied her with the doctor’s business card. He concluded that the Claimant would be ready to see the Respondent on 15 February 2021 when his most recent fit note expired [55] and [58].

[29]On 28 January 2021, Mumtaz Abdullah wrote to Lukasz Winczewski stating: “We need to assess him before starting any duty of driving as mentioned before. We have to take measures with insurance and DVLA” [55a]

[30]On 3 February 2021, the Claimant returned to the UK. The Respondent and Lukasz Winczewski had agreed for the Claimant to have a test and release, so he did not have to self-isolate for the period that was required by law at this time. They agreed to meet on 4 February at 3pm.

[31]The Claimant and Lukasz Winczewski did meet with Mr Abdullah on 4 February 2021 as planned. The Claimant reports that it was a positive meeting in which Mr Abdullah stated he could do shorter domestic routes only, Mr Abdullah said he wanted him back to work and patted him on the back.

[32]The Respondent put into evidence a handwritten note that Mr Abdullah says was written after the meeting on the same day. It records: “Gross misconduct for providing false documents, he could not provide any explanation, none. Failure to comply with requests regarding what information had been submitted to DVLA in order to comply with insurance and VOSA. In the meeting Wiktor disclosed he didn’t have his licence back from DVLA and therefore could not return to work.” [61].

[33]These notes were never provided to the Claimant or Lukasz Winczewski at the time. In his live evidence to the tribunal, the Claimant said there was no mention of misconduct to him, not at this meeting nor at any time. He maintained it was a favourable and friendly meeting. Lukasz Winczewski also gave evidence to the tribunal that the meeting was pleasant in tone and that these notes did not reflect what was discussed.

[34]The tribunal accepted the evidence of the Claimant and Lukasz Winczewski on this matter. We found them to be credible and straightforward witnesses whose answers tended to be consistent with one another, with underlying documents, and internally consistent in that they did not contradict their own evidence. In contrast, we found that Mr Abdullah had no witness to corroborate his account of the meeting of 4 February 2021 (he attended alone). Further, his evidence to the tribunal was at times inconsistent with documentary evidence and he often contradicted his own answers when giving oral evidence, changing his account. We noted that the hand-written notes were not shown to the Claimant before disclosure and there was no signature on them to verify their accuracy at the time.

[35]However, the comment in the note about gross misconduct and falsification of documents further demonstrates that the Respondent did not believe the veracity of the Claimant’s account or the reports he had provided and considered he had falsified documents. This demonstrates the lack of trust they had in him at this time. Notwithstanding this, the Respondent did not invite the Claimant to an investigatory meeting or commence any form of disciplinary process. The Respondent did however refer the Claimant to be assessed for fitness by a doctor.

[36]On 10 February 2021, Lukasz Winczewski emailed Mumtaz Abdullah chasing the report from the Respondent’s doctor and the DVLA. On 11 February 2021, Dr Zohaib Abdula sent an email to Mumtaz Abdullah with subject line “OH advice” and which reported: I advise that Mr Winczewski should inform his GP, either by sending a translated discharge letter from his surgeon in Poland or another option is for his GP to refer him to a trauma and orthopedic surgeon to review his progress and a formal letter to his GP to advise if he is fit to work as a haulage driver again. A quicker option would be a private referral via his GP to an orthopaedic surgeon or calling three shires hospital… In my professional opinion as a doctor, I would advise against returning to work until all the above criteria are met.” [63]

[37]On 12 February 2021, Mumtaz Abdullah wrote to Lukasz Winczewski referring to Dr Abdula’s email stating that the Claimant needs to be seen by an orthopaedic surgeon and that the “GP is not correct to advise as this should come from the orthopaedic consultant” [64]. In this email to Lukasz Winczewski, Mumtaz Abdullah also stated that the Claimant had to notify the expert that he is an HGV driver, but she did not specify that he had to tell the expert specific details of his duties.

[38]On 15 February 2021, the Respondent informed the Claimant that he had to inform the DVLA of his health condition and attached a link to a form for the Claimant to complete [65].

[39]On 16 February 2021, the Claimant’s GP wrote a letter to the Respondent stating: “The letter from neurosurgeon in Poland states healing of vertebrae can be seen and he does not suffer from pain or take painkillers anymore. Mr Winczewski states he is doing well. He is fit to return to work. Please do not hesitate to contact us if required.” [66]

[40]The Respondent wrote to the GP on 16 February 2021 (erroneously dated 16 January) stating that they need a report from a trauma and orthopaedic surgeon to give an opinion on the Claimant’s ability to return to work and gave some details of the role, stating how demanding it was [67]. It would appear from what followed (and from the fact that both parties deny ever having made a referral to Professor Shad) that the GP must have made this referral after receiving this letter. Indeed, we note that the letter from Prof Shad is addressed to the GP [75].

[41]On 13 April 2021, Lukasz Winczewski informed the Respondent that the Claimant had been assessed by telephone but the surgeon wanted to see him face to face [71].

[42]On 17 April 2021, the Claimant received a letter from the DVLA which stated that his licence was valid and “you satisfy the medical standards for safe driving” [72]. The Claimant provided this to the Respondent on 21 April 2021 [73a].

[43]On 27 April 2021, Lukasz Winczewski informed the Respondent by email that after the assessment with the specialist, the Claimant had been cleared to return to work a report would follow [73a]. The Respondent replied stating the report would need to cover “all I asked for when you send the one from Poland” and querying what had been said to the expert, stressing how physically demanding the role was. Mumtaz Abdullah also stated they would need to see what the DVLA had been sent by the Claimant (i.e. what information he had provided about his role and his condition) and the reply from the DVLA [73]. Lukasz Winczewski replied stating that the GP had completed the form to send to the DVLA and hence neither he nor the Claimant had a copy, but that they had already provided the reply from the DVLA on 21 April 2021 [73a]. The tribunal noted that neither the Claimant nor Lukasz Winczewski had previously been asked by the Respondent to provide a copy or make a copy of what had been sent to the DVLA.

[44]On 28 April 2021, Lukasz Winczewski informed Mumtaz Abdullah that the Claimant was ready to work, and that the Respondent had:(1) the DVLA letter (which certified his licence as valid and that he satisfied the medical standards for safe driving;

(2) a letter from his UK GP (which stared he was fit to return to work); and

(3) Prof Shad had also confirmed his fitness and a report would be received shortly.

[45]On about 30 April 2021, the Respondent received a copy of the report from Professor Shad (professor in neuro and spinal surgery) dated 27 April 2021, which stated that the Claimant has sustained an injury in August 2020 and that: “I reviewed Wiktor in clinic today, he walked into clinic unaided, on examination he did have normal power in all muscle groups, he was quick to get in and out of the chair. His wound has healed nicely, he did not have any pain…I have explained that he does need to be careful with his posture, and considering his age, I have also explained that removing the metalwork is not the preferred option. He did ask me with regards to returning to work, he works as HGV driver and I am of the opinion that he can return to work, while driving he must be aware of his posture and observing his posture also.” [75]

[46]On 17 May 2021, without any further meetings or correspondence, the Respondent sent a letter of termination to the Claimant on the basis that they were not “entirely happy” with the report from Prof Shad. The Respondent stated: “After reviewing the letter with our legal advisors, we have grave concerns for you to return to your old job of driving HGV 44 tonne vehicle. This is due to the fact that Prof Shad mentions “while driving he must be aware of his posture and observing his posture also”, whereby we are not entirely happy as we have a duty of care for you and have concerns that you would aggravate your injury further. … We have a duty of care, your posture would strain and become compromised from driving time of 9 hours a day with 2 days at 10 hours and the total working time of 12 hours a day with 15 hours twice a week… With experience in HGV 44-tonne vehicle being part of the logistic industry for over 30 years, we requested the specialist medical opinions due to the severity of your injury and we have grave concerns not only for your health but he public at large, if you were involved in a road traffic accident or if your injury was suddenly aggravated whilst driving due to posture movement if you had to suddenly brake, this certainly would intensify your injury further and long term. Regrettably, for reasons given with duty of care in mind, we cannot let you return to your old job. Unfortunately, we have neither any other vacancy to offer in place of driving and sadly we have no alternative but to terminate your employment as of today 17 May 2021. You have right to appeal [77]. The letter was signed and sent from Mr Abdullah.

[48]The Claimant did appeal, but he subsequently withdrew this. In his evidence to the tribunal he stated he withdrew his appeal because he had no trust and confidence he would get a fair appeal.

[49]In his live evidence, Mr Abdullah accepted that he would have heard the appeal because Chris Williamson had passed away and there was no one else to chair it. Mr Abdullah noted he had made the decision to dismiss. He had also been involved in the process of discussing a return to work, including chairing the meeting on 4 February 2021. He also stated that his decision on appeal would possibly have been the same but did not expand on how it might have differed or why.

[50]The Respondent did not have an HR department or seek advice from an HR consultant at the material time of the events giving rise to these claims. However, we note from the dismissal letter than the Respondent did obtain legal advice before dismissing the Claimant.

RELEVANT LAW

[51]Section 98 of the Employment Rights Act 1996 (“ERA”), 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.

(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, ...

(3) In subsection (2)(a)— (a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality, ...

(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.

[52]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

[53]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.

[54]In present case, the Respondent advances capability as the reason. Under s. 98(2)(a) ERA this is a potentially fair reason. Capability here means an employee's capability assessed by reference to skill, aptitude, health or any other physical or mental quality (per section 98(3)(a) ERA).

[55]Where the facts of a case fall squarely within one of the section 98(2) ERA reasons, there cannot simultaneously be an SOSR reason, because by definition, SOSR is some other substantial reason. In some cases, the reason may appear to fall within one of the section 98(2) ERA reasons, but in fact does not. In Wilson v Post Office

[2000] IRLR 834

, an employee with a poor absence record (due to genuine ill-health) was dismissed for failure to satisfy the employer's attendance policy. A tribunal found that the reason for dismissal was capability, but the Court of Appeal held that the reason was the employee's failure to meet the requirements of the policy, which was SOSR.

[56]In Ridge v HM Land Registry [2014]

UKEAT/0485/12

, the tribunal found that the dismissal had been for "some other substantial reason", not "capability" as had been asserted by the respondent. The EAT held that the re-labelling of the reason for dismissal had caused no procedural unfairness or practical difficulty for the parties. The EAT developed the point made in Wilson, and emphasised that the correct characterisation of the reason for dismissal will depend on what was at the forefront of the employer's mind. If it was the employee's "skill, aptitude, health or any other physical or mental quality", then the reason for dismissal will be capability under section 98(2)(a) ERA. But where the recurring absences themselves are the reason for dismissal (which is not unusual) and an attendance policy has been triggered, the better characterisation may be SOSR.

[57]Even where an employer establishes that capability in the form of ill-health is the reason for an employee's dismissal under section 98(1) of ERA 1996 the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason. This requires consideration of: whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating ill-health as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case. (Section 98(4), ERA 1996.)

[58]Case law states that fairness requires the employer to follow a fair procedure. The principles governing procedural fairness in cases of dismissal for genuine ill-health are those established by case law.

[59]The leading case on fairness in ill-health dismissals is Lindsey District Council v Daubney

[1977] ICR 566

at 571-572). In Daubney, the EAT stated that: "Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill-health it is necessary that he should be consulted and the matter discussed with him, and that in one way or another steps be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases, for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done."

[60]The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss for capability:(a) The nature of the employee's illness.

(b) The prospects of the employee returning to work and the likelihood of the recurrence of the illness.

(d) The effect of the absences on the rest of the workforce.

(e) The extent to which the employee was made aware of the position.

(f) The employee's length of service.

(g) Whether there are alternative roles available which the employee could do so as to avoid dismissal.

[61]Many of these factors were referred to in Lyncock v Cereal Packaging Ltd

[1988] ICR 670

which tends to be regarded as the seminal authority on cases involving persistent short-term absences (but which provides helpful guidance for all ill-health dismissals).

[62]In cases of misconduct, the test deriving from British Home Stores Ltd v Burchell

[1978] IRLR 379

applies, namely:(a) Did the employer believe the employee to be guilty of the misconduct?

(b) Did the employer have reasonable grounds for believing that the employee was guilty of that misconduct?

[63]In DB Schenker Rail (UK) Ltd v Doolan

UKEATS/0053/09/BI

, the EAT held that the Burchell test for conduct dismissals is applicable to ill-health capability dismissals. “Although this was a capability dismissal rather than a conduct dismissal, the Burchell analysis is, nonetheless, relevant because there was an issue as to the sufficiency of the reason for dismissal – a potentially fair reason relating to capability — in this case. Accordingly the Tribunal is required to address three questions, namely whether the Respondent genuinely believed in their stated reason, whether it was a reason reached after a reasonable investigation and whether they had reasonable grounds on which to conclude as they did.”

[64]The EAT in DB Schenker Rail (UK) Ltd v Doolan [2010]

UKEAT/0053/09

noted how easy it can be for tribunals to fall into the substitution mindset in cases of ill-health. Tribunals must guard against being carried along by sympathy for a long-standing employee when their employer has concluded that they are not fit to return to their job. tribunals must, in such circumstances, resist the temptation to test matters according to what they would have decided if they had been in the employer's shoes.

[65]The onus is on the employer to take reasonable steps to ascertain the medical position, rather than the onus being on the employee to volunteer medical information (beyond the duty to submit sick notes). In Mitchell v Arkwood Plastics (Engineering) Ltd

[1993] ICR 471

, an employment tribunal erred when it found a dismissal fair on the basis that the employee had failed to volunteer a medical prognosis.

[66]When investigating the medical position, an employer should be judged by the standards of the reasonable employer, not by the standards of whether it left no stone unturned.

[67]However strongly the medical evidence may point towards dismissal, the employer should always consult with the employee rather than relying solely on the expert's opinion (Daubney). An employee may wish to challenge the medical opinion in some way or obtain a counter-report.

[68]An employer is entitled to take a medical opinion at face value, unless a reasonable employer would not have relied on a report of that nature. In Liverpool Area Health Authority (Teaching) v Edwards, the EAT stated: "We do not think that an employer, faced with a medical opinion, unless it is plainly erroneous as to the facts in some way, or plainly contains an indication that no proper examination of any sort has taken place, is required to evaluate it as a layman in terms of medical expertise".

[69]Where the employer obtains more than one medical opinion and the two opinions conflict, a reasonable employer would usually take steps to resolve this conflict, by obtaining a third report or by seeking further clarification. However, there may be cases where an employer is entitled to prefer the opinion of one expert over another, although it should be able to show that it acted reasonably in doing so.

[70]Consultation with the employee is central to the fairness of any dismissal for ill-health, as established in Daubney. In that case, the fact that the employee had not been consulted rendered the dismissal unfair. It was pointed out (at paragraph 572) that:(a) Discussion and consultation with the employee will often bring to light facts and circumstances of which the employer was unaware, which will throw new light on the problem.

(b) The employee may wish to obtain their own medical evidence, which may result in the employer's medical advisers changing their opinion.

[71]As with mitigating factors in misconduct cases, length of service should ordinarily be weighed in the balance when the employer is deciding to whether to dismiss for capability. 72. the ACAS Code of Practice on Disciplinary and Grievance Procedures sets out steps that an employer should take in cases of dismissal for misconduct and poor performance. Although the ACAS Code states specifically that it applies to misconduct and poor performance situations, it does not mention other issues affecting capability, such as ill-health. Direct discrimination

[73]Section 13 Equality Act 2010 (“EqA”) states: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[74]Section 9 EqA states: (1)Race includes—(a) colour;

(b) nationality;

[75]Section 23 EqA states: (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.

[76]Section 136(2) EqA is the reverse burden of proof which states: If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

[77]Accordingly, under s.13 EqA, a claimant must show that they have been treated less favourably than a real or hypothetical comparator. However, the fact that a claimant has been treated less favourably than an actual or hypothetical comparator will not be sufficient to establish that direct discrimination has occurred., nor even to shift the burden of proof under s.136 EqA. There must be “something more” from which the tribunal can conclude that the difference in treatment was because of the protected characteristic (Madarassy v Nomura International plc

[2007] IRLR 246

(CA)).

[78]If there are facts from which the tribunal could conclude that discrimination occurred, the burden of proof shifts to the respondent to provide an adequate non-discriminatory explanation for its actions.

[79]Under s.13 EqA, to amount to discrimination, the less favourable treatment must be “because of” a protected characteristic. The phrase “because of” replaced the words “on grounds of” used in antecedent legislation. However, it has been noted that this was not intended to change its meaning.

[80]In Nagarajan v London Regional Transport

[1999] IRLR 572

the House of Lords noted that in most cases the respondent’s subjective thought processes are in fact a central issue.

[81]It is established law that the discriminatory reason need not be the sole or even principal reason for the respondent’s actions, it only needs to have had “a significant influence on the outcome” (Nagarajan). APPLICATION OF LAW TO FACTS

[82]In respect of the reason for dismissal, the Respondent relied on capability. We reminded ourselves of the definition under s.98(3) ERA that capability here means an employee's capability assessed by reference to skill, aptitude, health or any other physical or mental quality.

[83]This was not one of the cases in which the claimant had been on longterm sickness absence and the respondent was dismissing as a result of that absence. Rather, this was said to be the Respondent’s belief that the Claimant was physically incapable of doing the role for which he was employed due to his health or physical condition.

[84]We find that the Respondent has not discharged the burden of proving, on balance of probabilities, that it genuinely believed that the Claimant was incapable of his role at the date of termination on 17 May 2021. We found this to be an untenable position because by that date:(a) The Claimant had been discharged by a clinician in Poland who had reported in January 2021 that the Claimant’s treatment is finished, he has healed and that he does not take painkillers or suffer from pain anymore [56];

(b) The Claimant’s UK-based GP had reported that he was fit to return to work and that he had no pain and needed no painkillers [66];

(c) The Respondent’s own occupational health doctor had advised the Respondent as to what was needed and it had been received;

(d) The DVLA had reported that the Claimant was licensed to drive and medically cleared to do so, notwithstanding having been informed by the Claimant’s GP of his condition; and

(e) A professor in neuro and spinal surgery (Professor Shad) had examined the Claimant and confirmed that he was fit to return to work as an HGV driver.

[85]In light of all of this evidence, we find that the Respondent cannot genuinely have believed that the Claimant was unfit or incapable within the meaning of the legal definition of incapability. We find that such a conclusion would be wholly irrational by that time and we consider it is not in fact what operated on Mr Abdullah’s mind at the time.

[86]We have therefore had to consider what the real reason for electing to dismiss the Claimant was. We note from the dismissal letter that Mr Abdullah stated he was not “entirely happy” with returning the Claimant to his role that due to his duty of care to the Claimant, other road users and the public, he could not let him return to his role.

[87]In his witness statement to the tribunal, Mr Abdullah stated: I gave Mr Winczewski every opportunity to comply with requests for what information had been disclosed to the DVLA in terms of his accident, and for an Orthopaedic Surgeon’s recommendation letter, neither of which were received despite repeated requests. False documents provided could have resulted in dismissal for Gross Misconduct.”

[88]We find that the real principal reason for dismissal is that Mr Abdullah was suspicious as to whether the Claimant had accurately informed the DVLA of his injury and treatment and distrusted that he had accurately informed his GP and Professor Shad of the requirements of being an HGV driver. He also doubted whether Professor Shad was qualified to give an opinion, or whether it had to be an orthopaedic surgeon.

[89]We base this finding on the comments made to the tribunal, Mr Abdullah’s witness statement and the evidence (noted above) which demonstrated that the Respondent distrusted the Claimant from 4 August 2020 onwards: firstly with respect to whether he had in fact sustained an injury (doubting his veracity); then as to the validity or falsification of documents; then as to what had been conveyed to the DVLA or Professor Shad. Hence, we find that on balance of probabilities that the Respondent believed that the Claimant was not being full and frank in his disclosure as to his medical condition and the Respondent lost all trust and confidence in him some time in late January 2021.

[90]We noted that it was in late January 2021, that Mumtaz Abdullah stated to Lukasz Winczewski that the Claimant had produced a false report and she would have to take it further, attaching extracts of the definition of gross misconduct for falsifying reports [53-54].

[91]The Respondent never regained that trust and continued to believe that the Claimant had been less than frank and honest in the various interactions with his GP, the DVLA and Professor Shad thereafter. Indeed, even in his witness statement for the hearing, Mr Abdullah commented “False documents provided could have resulted in dismissal for Gross Misconduct” and in his oral evidence, as noted above, he stated “once we received the false file, my confidence was zero in him”

[92]Accordingly, we find that the real principal reason for dismissal is a belief he had misled the Respondent or others about his condition, which is a conduct reason, within the definition of s.98(2) ERA. This in turn led to the Respondent distrusting the Claimant. Ancillary reasons flowing from that distrust included the Respondent’s concern that if the medical evidence was falsified and they allowed him to return to work, it could have legal implications for the business or present health and safety risks. These were part of the reason for dismissal, but not the principal reason, which as stated was a belief that the Claimant had falsified documents and been dishonest about his condition.

[93]As such, there is a potentially fair reason under s.98(2) ERA, namely a conduct reason and the Respondent did genuinely believe it. We then went on to consider whether it was reasonable in all the circumstances to hold that belief and whether a reasonable investigation and process was followed in accordance with the Burchell test and the case law as to what is required for a fair disciplinary process for conduct, in accordance with the ACAS Code.

[94]We conclude that the Respondent’s belief that the Claimant had provided false information or withheld information from certain persons (his GP, the DVLA or Professor Shad) was outside the range of reasonable responses in all the circumstances of the case including that:(a) The Claimant had produced certified translated copies of hospital discharge notes with detailed information which would be difficult to falsify [23-25c];

(b) Whilst Lukasz Winczewski had originally sent an incorrect document to the Respondent from the Polish doctor, this was quickly corrected on 27 January 2021 with the provision of a stamped certified copy and the Respondent was given permission to speak to the clinician about the Claimant’s condition and provided with contact details and a business card;

(c) The Claimant had provided fit notes and letters from his UK GP which were consistent with other medical information provided to the Respondent;

(d) Lukasz Winczewski had reported on the Claimant’s condition to Mumtaz Abdullah by email and telephone on various occasions and it was consistent with the other sources of information provided at the time and later;

(e) Lukasz Winczewski had explained to Mumtaz Abdullah that the Claimant’s own GP had completed the papers for the DVLA, so the Respondent had no reasonable basis to doubt whether adequate disclosure had been made of the Claimant’s medical condition or that the DVLA approval was somehow unsound / unreliable; and

(f) The Respondent had no basis for forming the view that the Claimant had not informed Prof Shad of what HGV driving entailed or that Prof Shad’s view was in some way unreliable.

[95]Accordingly, if the Respondent had a genuine belief that the Claimant was guilty of falsifying records or withholding information from the DVLA, his GP or Prof Shad, there was no reasonable basis for that belief.

[96]Further and in any event, there was no investigation, and no disciplinary process whatsoever to allow the Claimant to address the Respondent’s concerns or give his account. Therefore, having not done any investigation into the suspicions of misconduct, any conclusion drawn by the Respondent cannot be said to have been reached on a reasonable basis. It was reached on pure suspicion.

[97]It was outside the range of reasonable responses for the Respondent not to have investigated any uncertainties it had about the medical evidence, or to have failed to seek clarity from Prof Shad about what he had been told about the role of an HGV driver. The Respondent did not consult with the Claimant about its concerns. If the Respondent had genuine concerns as to what information had been passed to prof Shad, they could have ascertained the true position before dismissing the Claimant. No reasonable employer would have dismissed before taking such steps in the circumstances.

[98]Even if capability had been the real reason for dismissal, the dismissal would have been unfair procedurally and substantively in light of the medical evidence above which was credible, recent, reliable and from suitably-qualified experts who had examined the Claimant and verified him fit to work. The overwhelming message from the medical information was that the Claimant was fit for work just weeks before the Respondent took the decision to dismiss him on the basis that it deemed him to be unfit.

[99]It was outside the range of reasonable responses for the Respondent to disregard the expert medical evidence and instead draw its own conclusions about the Claimant’s ability to safely work, when neither Mr Abdullah nor Mrs Abdullah were medically qualified, less still a professor in neuro and spinal surgery (like Prof Shad). The Respondent’s interpretation and reliance on the comments about posture by Prof Shad was outside the range of reasonable responses. If the Respondent had genuine concerns about the implications of the caveats on posture that Prof Shad had made in his report, the Respondent should have sought clarity as to what was meant, not drawn the conclusions that it did in the dismissal letter, which were outside the range of reasonable responses.

[100]The Respondent’s concern that Professor Shad was not a suitable expert is outside the range of reasonable responses because Prof Shad himself would have indicated if someone of a different expertise was required to review the Claimant’s fitness. Further, since admission to hospital in Lodz, the Claimant had been under the care of experts in Neurosurgery (which plainly includes spinal injuries). The Respondent’s fixation on needing an orthopaedic specialist (which it took from its occupational health advisor’s recommendation) was not reasonable. Even if were a reasonably held belief, the Respondent should have checked with its occupational health advisor upon receipt of Prof Shad’s report to verify if its own occupational health doctor considered the report to be from someone suitably qualified. Instead, the Respondent decided that it knew better and decided it was not a suitably qualified expert. This was outside the range of reasonable responses.

[101]There was also no evidence to suggest that the Respondent had seriously considered alternative roles for the Claimant or adjusted duties. The dismissal letter comments on the Respondent’s belief that the Claimant would be unfit to drive the routes and hours he ordinarily did, but the Respondent did not explore alternatives with him at any time before it dismissed him. Nor did the Respondent present any evidence (other than the one comment in the dismissal letter above) to suggest it had considered this or any explanation as to why there were no suitable alternative roles or adjusted duties. It also appears that the Respondent paid no regard to the Claimant’s length of service or his clean disciplinary record. Mr Abdullah’s witness statement made no mention of having considered such matters. This reinforces the conclusion that the real reason was a belief in misconduct, because if the belief was as to capability, the Respondent would not doubt have led some evidence of attempts to keep the Claimant employed in some capacity. Further, this failure would render any dismissal for capability outside the range of reasonable responses.

[102]We have taken into account the size of the Respondent, in that it has approx. 45-50 staff, including 10 office staff, two yard workers and the rest drivers. We have also borne in mind that the Respondent had no HR department or support, but note it did have legal advice before the decision to dismiss, as stated in the dismissal letter [77]. Notwithstanding its modest size and limited resources, the above failures are so significant that its decision is plainly outside the range of reasonable responses. Notice Pay

[103]As to notice pay, we find that there is no basis on which the Respondent can argue that this is not due. Even if the Claimant had been dismissed for genuine capability which had been well-founded, he would be entitled to notice pay. Whilst we have found that the Respondent believed the Claimant had committed misconduct, we do not find that he in fact had committed any act of misconduct, less still gross misconduct.

[104]Accordingly, there was no repudiatory breach of contract by the Claimant and no right to dismiss him summarily. Therefore, we find that the Claimant is entitled to recover his statutory notice pay. We have not been provided with a copy of his contract but can consider this at the remedy stage if necessary (if greater notice is sought than the statutory period). Wages

[105]The Claimant claims wages from February 2021 (when his GP declared him fit to return to work) to the date of termination. We find that he is entitled to be paid his normal pay from the date on which the Claimant could lawfully have resumed his duties, namely once the Respondent had confirmation both from a medical practitioner and from the DVLA that the Claimant was cleared to drive.

[106]The Respondent received the letter from the Claimant’s GP on 15 February 2021 stating the Claimant was fit to return to work. The Respondent received the DVLA letter on 21 April 2021. Hence we find that from 22 April 2021, the Claimant was fit, willing, able and lawfully allowed to resume his duties and it was the Respondent that failed to allow him to do so. Hence wages are properly payable from that date. Race

[107]On the issue of race discrimination, we have considered whether there are facts from which we could conclude, in the absence of an adequate explanation, that race was a substantial and effective cause of the decision to dismiss. We reminded ourselves that it need not be the sole or even the main reason.

[108]The Claimant is of Polish nationality and this was the element of race on which he relied.

[109]The Claimant put his case on the basis of a real comparator: a British driver called Mr Umney. He stated that Mr Umney had been off sick for three months with a heart condition and had been allowed to return to driving afterwards. The Claimant stated in oral evidence he had been told this by “Alan the guard” and he himself had not seen Mr Umney during a period of months when they would normally have crossed paths on their routes, which led him to believe that what Alan had said was true and that Mr Umney was absent for this reason.

[110]We heard directly evidence from Mr Umney. Whilst we found elements of his evidence to lack credibility, we accepted his evidence that he has never suffered a heart condition and has never taken three months (or any similar period) off work. Therefore, on the basis of the argument advanced by the Claimant, we found that there was a material difference between the circumstances of the comparator and those of the Claimant.

[111]We then had to consider whether the Claimant was treated less favourably than a non-Polish driver in the same material circumstances would have been treated, specifically, whether such a driver would not have been dismissed. Given that there was no real comparator or evidential comparator, we decided to approach the matter by considering the “reason why” the Claimant was dismissed, as is permissible under the guidance given in Shamoon.

[112]Therefore we went on to consider if there were facts from which we could infer that race was an effective cause of dismissal.

[113]We heard evidence that in 2019, the Claimant raised an issue of pay parity with respect to a subsistence allowance (“PIE allowance”) on the basis that British drivers appeared to be paid more than Polish drivers. Mr Abdullah agreed this had been raised. He did not deny there had in fact been a disparity in pay and did not dispute the assertion that Polish workers were on a lower rate of PIE allowance than British. He instead sought to defend the matter stating that it had been resolved once it was drawn to his attention and was thus historic. He stated the disparity had been due to different duties, but when tested, he was unable to explain any coherent basis for the difference. We found his evidence unimpressive on this point. However, we considered the most likely explanation was that Mr Abdullah was a man that would save costs where he could and if one group of drivers (quite irrespective of race) insisted on a higher rate than another, he was content to pay them differently to save money where he could, rather than treat his workforce fairly.

[114]The Claimant also stated that Mr Umney had refused an unfavourable route and had been heard referring to Polish drivers as “Polish Dogs” telling management to allocate the route to the Polish drivers. Mr Umney ultimately denied this allegation, but his first response to the allegation in live evidence was to deny that he had ever refused a route, not to say he never made such a comment or would never do so. We found his evidence unimpressive on this point. However, we note that Mr Umney had no involvement in the decision to dismiss the Claimant.

[115]The Claimant also said that over the years there had been numerous times he and others had complained of discriminatory treatment and management never did anything about it. We find that there were complaints raised orally and management neither investigated them nor invited any drivers to use the grievance procedure. There was no evidence of anything having been done in respect to any such complaints. However, none of the complaints we were informed about implicated Mr or Mrs Abullah. Rather, they failed to address them, but they were not the alleged perpetrators.

[116]We also heard evidence from Mr Abdullah that he had travelled to Poland in 2004 to recruit a number of Polish drivers and he employed a Polish translator to facilitate such recruitment. Mr Abdullah stated he had employed many Polish drivers over the years and the Claimant did not dispute this. The Claimant asserted that there had been various Polish drivers who had been dismissed, but on further enquiry, it became clear that they had chosen to leave their roles as employees only to be reengaged by the Respondent as contractors (drivers) because it suited them to operate that way. Whilst this does not mean that the Respondent cannot have discriminated against the Claimant when it dismissed him, it provided some support against any suggestion that Mr Abdullah was overtly biased against Polish drivers, as suggested.

[117]Taking all this into account, we find that whilst the Claimant has proven facts from which we might be entitled to conclude that certain matters or “detriments” had occurred due to race, there were no facts which linked the issue of race to the Claimant’s dismissal. Nor did we find any evidence linking Mr Abdullah directly to the acts from which inferences of race discrimination might be drawn, and he was the person who took the decision to dismiss.

[118]We are satisfied, as stated above, that the factors operating on Mr Abdullah’s mind when he decided to dismiss the Claimant was an unreasonable suspicion that the Claimant had falsified medical records and withheld relevant information from the DVLA, his GP and Prof Shad and an unreasonable loss of trust as a result. We find that this is the complete answer to the Respondent’s decision and that race played no part in it.

[119]We also find that had a British driver been in the same material circumstances as the Claimant, starting with him having 12 weeks’ statutory sick pay for absence in the first lockdown, then returning for a short period before having three weeks on holiday, which he then had to convert to sick leave (noting he had requested more holiday originally which had been denied) and then provided the documents which he did (and which the Respondent doubted) such a driver would have been subject to the same degree of distrust and suspicion as the Claimant was and hence would have been treated the same, namely, would also have been dismissed by Mr Abdullah, even if he had the same medical and DVLA clearance by April 2021.

[120]Accordingly, we do not uphold the race discrimination claim.

RELEVANT LAW

[1]The Respondent shall pay to the Claimant compensation for unfair dismissal totalling £11,103.75. This includes:(a) a basic award of £9,792.00

(b) The compensatory award of £1,311.75 comprising: (i) loss of earnings post dismissal of £533.40 (ii) £500 compensation for loss of statutory rights (iii) £16.00 pension loss (iv) an uplift of 25% for unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures, giving a total compensatory award of £1,311.75.

[2]The Respondent shall also pay to the Claimant £2,231.59 as damages for unlawful deduction from wages.

[3]There is no separate award for notice pay given that the Compensatory Award covers the same period of loss and there cannot be double recovery of the same loss.

[4]In total therefore, the Respondent must pay to the Claimant £13,335.34.1 1 £11,103.75 + £2,231.59 = £13,335.34

Introduction

[1]By a judgment sent to the parties on 25 November 2022, the Tribunal upheld the Claimant’s claims for unfair dismissal, notice pay and wages and dismissed the claim for race discrimination. (The claim for holiday pay was dismissed upon withdrawal at the outset of the hearing.) Reasons were given orally on 19 October 2022, but since such time, written Reasons were requested and were duly sent to the parties on 19 January 2023.

[2]The Tribunal was unable to determine remedy at the hearing in October 2022 due to lack of time, but it received evidence from the Claimant on that matter, and invited submissions from the parties. The matter was then adjourned for the Claimant to provide payslips for the period of time he worked for the Respondent and for the panel to schedule a further day to meet to deliberate and determine the remedy issues.

[3]The payslips were received by the Tribunal on 20 October 2022, but unfortunately they were not passed on to the Tribunal panel until 12 January 2023. Thereafter, the panel members liaised to agree a mutually convenient date and met on 24 April 2023 by CVP to deliberate and decide the remedy issues. Remedy Issues

[4]The issues were as follows:(a) What is the correct level for the Basic Award?;

(b) What level of Compensatory Award would be just and equitable in all the circumstances having regard to the loss sustained in consequence of the dismissal insofar as that loss is attributable to action taken by the Respondent?;

(d) Should any uplift be awarded in respect of the Compensatory Award for any unreasonable failure to follow the ACAS code of practice on Discipline and Grievance procedures?;

(e) What damages flow from the unlawful deduction from wages claim?; and

(f) What damages flow from the claim for notice pay?

Findings of fact

[5]The Tribunal made the following findings of fact in addition to those made at the liability stage of the hearing:

[6]Following the summary termination of the Claimant’s employment on 17 May 2021, he took up work as an HGV driver in the UK, through an agency, working from 25 May 2021 to mid August 2021, earning more per week than he earned whilst employed by the Respondent.

[7]In late August 2021, the Claimant moved to Poland (where he had been born). He appears not to have commenced working there until October 2021, when he started working as an HGV driver. His income from that work is said to have varied from approximately 3533 PLN to 6817 PLN net per month, averaging approximately £1000 net per month (depending on the date the exchange rate is taken from). The Claimant did not give any evidence as to his activities in Poland from late August 2021 until October 2021 when he started working there, which might have been relevant to the question of mitigation.

[8]The Claimant stated that the reason he relocated to Poland in late August 2021 was: ‘Because I got depressed and had a discussion with my wife and took a decision to return and we left in August… I was not able to stay in England, all the facts and injustice of the experience kept coming back to me. Had it not been for MAM I would have worked here until today. I feel sad I had to leave my family, my granddaughter.’

[9]There was no medical evidence of the Claimant having suffered any clinical mental health condition, nor anything (other than his own testimony) to suggest he had suffered low mood or similar. The Claimant did not give any evidence to suggest he needed medical treatment (counselling for example) or medication in order to manage his symptoms. Whilst we had medical evidence for the period of time when the Claimant was unable to work due to his back condition, we did not have anything in respect of mental health at or after the date of termination of employment.

[10]We therefore found that whilst he did experience low mood following his dismissal, he was not suffering from a clinical condition, nor effects or symptoms that were severe enough to prevent or hinder him from being able to seek work or do work as an HGV driver. Indeed, he did work as an HGV driver immediately after the termination of his employment and until mid-August 2021, earning more than he had at the Respondent (therefore suggesting his was not working part time for example).

[11]The Claimant was the one that chose to end the relationship with the agency in the UK for whom he worked from May to August 2021, by giving one week’s notice. In the UK at that time there was a shortage of HGV drivers and thus a high demand for those with HGV licences. Conclusion on unlawful deduction from wages damages

[12]Per paragraph 106 of the written Reasons sent to the parties on 19 January 2023, the Respondent received a letter from the Claimant’s GP on 15 February 2021 stating that the Claimant was fit to return to work. The Respondent received the DVLA letter certifying his fitness to drive on 21 April 2021. Hence, we found that from 22 April 2021, the Claimant was fit, willing, able and lawfully allowed to resume his duties and it was the Respondent that failed to allow him to do so. Hence wages are properly payable from 22 April 2021 date to the date of termination, namely 17 May 2021, which is 3.5 weeks.

[13]The sums are calculated on a gross basis, since they will be taxable under s62 ITEPA 2003.The calculation is therefore: 3.5 weeks x weekly gross pay of £637.592 = £2,231.59 Conclusion on wrongful dismissal damages for notice pay

[14]The Claimant’s 12 weeks’ statutory notice under s.86 ERA 1996 would have expired on 9 August 2021.

[15]The duty to mitigate applies to both wrongful dismissal and unfair dismissal compensation and the Claimant did effectively mitigate his losses from 25 May 2021 onwards, from which time he earned more than he did whilst engaged by the Respondent, thus fully mitigating his losses until mid August 2021. Therefore, any losses as notice pay would be limited to the period 18 to 24 May 2021, namely a week.

[16]The period of loss claimed for this claim overlaps with the period claimed as the Compensatory Award and there cannot be double recovery.

[17]We have awarded this period of loss (18-24 May 2021) under the unfair dismissal claim, to enable to ACAS uplift (to which the Claimant is entitled) to apply to the loss. Hence there is no separate award under the wrongful dismissal claim. Conclusion on the unfair dismissal basic award

[18]The Claimant was born in March 1964 and was thus aged 44 years by the date he commenced employment in November 2008. He worked for the Respondent until 17 May 2021, namely 12 complete years’ service. His Basic Award is thus (using the statutory formula under s.119 ERA 1996): 12 years x 1.53 x £5444 = £9,792.00 Unfair dismissal compensatory award: Law

[19]Section 123 ERA 1996 provides that the compensatory award shall be: ‘such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer’.

[20]The objective of a compensatory award is ‘to compensate, and compensate fully, but not to award a bonus’ (Norton Tool v Tewson

[1972] ICR 501

[21]Per Tao Herbs & Acupuncture Ltd v Jin [2010] 7 WLUK 412, it is essential not to lose sight of the three key factors identified in s.123 ERA 1996, namely:(a) Is the loss a consequence of the unfair dismissal? 2 Taking £33,155.00 gross per annum as his gross pay, averaged from the 12 months’ payslips for the year 2019 which were the only ones provided 3 The statutory multiplier under s.119(2)(a) ERA 1996 for those aged over 41 years during each complete year of service 4 The maximum gross week’s pay for the relevant year, which is less than the Claimant received gross per week, such that he can claim the maximum.

(b) Is the loss attributable to the employer's actions?

[22]Whilst a claimant must account for their earnings in mitigation, taking up temporary employment does not prevent their pre-existing and ongoing losses from being deemed losses ‘in consequence of the dismissal’ and ‘attributable to action taken by the employer’ for the purposes of s.123 ERA 1996, provided that is just and equitable in the circumstances. Therefore, taking up temporary employment will not generally constitute an intervening event that would end a respondent’s liability for losses arising after the original unfair dismissal (Whelan v Richardson

[1998] ICR 318

[23]However, a permanent position with equivalent or higher wages is likely to mean that a claimant has no substantial loss beyond the date the new job starts and will not be in a position to recover further compensation. Accordingly, on securing permanent employment, the original employer's ongoing liability to the claimant will be likely to cease and the causal link between future loss and the dismissal will be broken.

[24]Section 123(4) ERA 1996 requires a claimant to mitigate their loss. The usual common law rules of mitigation apply. A claimant is expected to take reasonable steps to mitigate their loss.

[25]The issue of whether the claimant has taken reasonable steps to mitigate is a question of fact for the Tribunal, and the respondent has the burden of proving that the claimant has not done so. It is not enough for the respondent to show that there were reasonable steps that the claimant could have taken but did not take. It must also show that the claimant acted unreasonably in not taking them. This distinction reflects the fact that there is usually more than one reasonable course of action open to a claimant (Wilding v British Telecommunications Plc

[2002] IRLR 524

(CA)).

[26]When considering mitigation, a Tribunal will look at the claimant’s circumstances (including their health and state of mind) to see what reasonable steps would be in the relevant circumstances. If the claimant suffers from ill health this can affect impair their ability to mitigate and this should be considered.

[27]In Cooper Contracting Ltd v Lindsey [2015] 10 WLUK 609, Mr Justice Langstaff, then President of the EAT, set out the following key principles derived from case law that Tribunals should take into account when considering the issue of mitigation of loss (per paras 11-16):(a) The burden of proof is on the respondent, as the wrongdoer. The claimant does not have to prove that they have mitigated their loss.

(b) It is not some broad assessment on which the burden of proof is neutral. If the respondent does not put forward evidence to the tribunal that the claimant has failed to mitigate, the tribunal has no obligation to make that finding (Tandem Bars Ltd v Pilloni

UKEAT/0050/12

(c) What has to be proved is that the claimant acted unreasonably; they do not have to show that what they did was reasonable (Waterlow & Sons Ltd v Banco de Portugal

[1932] UKHL 1

, Wilding and Ministry of Defence v Mutton

[1996] ICR 590

(d) There is a difference between acting reasonably and not acting unreasonably (Wilding).

(e) What is reasonable or unreasonable is a matter of fact.

(f) The claimant's views and wishes are one of the circumstances that the Tribunal should take into account when determining whether the claimant's actions have been reasonable. However, it is the Tribunal's assessment of reasonableness, not the claimant's, that counts.

(g) The tribunal should not apply too demanding a standard on the claimant who is, after all, a victim of a wrong. The claimant is not to be put on trial as if the losses were their fault, when the central cause is the act of the respondent as wrongdoer (Waterlow, Fyfe v Scientific Furnishings Ltd

[1989] ICR 648

and Wilding v British Telecommunications plc

[2002] ICR 1079

[28]It is not uncommon for a claimant to choose to undertake a course of training, pursue a career change or set up a self-employed business following a dismissal. The extent to which the respondent will be liable for lost earnings depends on the circumstances. Such steps can be reasonable in the circumstances (e.g Gardiner-Hill v Roland Berger Technics Ltd

[1982] IRLR 498

(EAT); Dore v Aon Ltd

[2005] IRLR 891

(CA)) and Orthet Ltd v Vince-Cain

[2004] IRLR 857

[29]Note that where a Tribunal finds that an employee has failed to mitigate his or her loss, it should not necessarily treat that failure as bringing the period of compensation to an end. Thus, where an employee’s decision to embark upon a course is held to be unreasonable, the tribunal should judge when the employee ought to have obtained fresh employment at a similar level.

[30]In Mullarkey v Up the Creek Ltd EAT 263/95, the Tribunal found the employee’s decision to embark on a full-time course to be a reasonable act of mitigation. It nevertheless decided to award her no compensation from the date her course started because any losses suffered from that date onwards were a result of her own actions and were not caused by the dismissal. It therefore considered that whilst she had reasonably mitigated, the commencement of the new course was a new supervening act which broke the causal chain. On appeal, the EAT held this to be wrong. If the employee’s actions were reasonable mitigation, then they could not have broken the chain of causation. But for the unfair dismissal, the employee would not have embarked on the course and would still have been in salaried employment with the employer.

[31]In Tchoula v ICTS (UK) Ltd

2000 ICR 1191

, EAT a Tribunal found that a security guard had mitigated his loss by retraining in the IT sector. The EAT sympathised with the respondent’s argument on appeal that it should not be responsible for funding his change of career. However, the question for the EAT was whether the Tribunal’s finding that he had mitigated his loss was perverse. The EAT did not think that it was. It was open to the Tribunal to find that it was reasonable for him to retrain in the IT sector and that it was reasonably foreseeable that such a course would be necessary as a result of the unlawful dismissal. The Tribunal was entitled to accept the claimant’s evidence that he did not pursue work in the security field as he would have needed a clean record to do so and because of his dismissal he did not have such a record. Conclusion on compensatory award

[32]The Claimant argued that he should be compensated for losses after he left the UK for Poland, and he claimed eight months’ losses being the difference in pay between what he would have earned whilst working for the Respondent and what he did in fact earn from October 2021 onwards, whilst working from Poland.

[33]The Respondent did not advance any evidence as to the availability of roles as HGV drivers in the UK at the material time but Mr Abdullah did state that there was a shortage and that such drivers were in high demand. This was widely publicised in the popular press at the time including on the BBC and other media outlets. The Claimant did not dispute that there was a high demand for drivers in the UK and the fact that he obtained work through an agency within days of termination of his employment (at a higher rate of pay) supports this.

[34]The Claimant did not suggest that any part of the reason he returned to Poland was due to a shortage of work in the UK or because the specific role he had obtained in late May 2021 had ceased. Indeed, he informed the Tribunal that he had been the party that chose to sever that relationship by serving notice on the agency. He did not give evidence as to whether that role was intended to be permanent or otherwise. In the past, agency arrangements tended to be fixed-term or flexible, but modern working practices show that employees can be engaged through an agency on a permanent or long-term basis (whether they work for the same end-user or not). Therefore, we had no information as to the nature of the agency role and could not draw conclusions as to its permanence. All we were informed was that he had secured such a role and that he had chosen to end it due to his decision to move to Poland.

[35]Accordingly, the Tribunal had to determine whether the Claimant’s decision to terminate the working relationship with the agency and relocate to Poland was reasonable or whether it amounted to breach of the duty to reasonably mitigate. We also had to consider whether the loss flowing after late August 2021:(1) was a consequence of the unfair dismissal;

(2) was attributable to the Respondent’s actions; and

(3) whether it is just and equitable for the Respondent to compensate the Claimant for the losses.

[36]We find that whilst the Claimant’s decision to relocate to Poland was perfectly understandable, it did breach the duty to reasonably mitigate his losses and/or it amounted to a supervening act which broke the causal chain and/or the loss was not reasonably foreseeable. We make these findings because:(a) The Claimant had lived in the UK for approximately 13 years and had family in the UK and was well settled in the UK with his wife and son;

(b) Within a week of his dismissal, he was earning more as an HGV driver in the UK than he had whilst employed by the Respondent;

(c) His earnings as an HGV driver in the UK were considerably higher than the pay he was able to earn as an HGV driver in Poland;

(d) There was a highly-publicised dearth of HGV drivers in the UK at the time and hence there was work available for qualified HGV drivers;

(e) There was no evidence nor any suggestion that the work the Claimant secured through the agency in May 2021 was coming to an end or that it might do so at any particular time or at all;

(f) The Claimant was perfectly fit (physically) to continue working as an HGV driver and did so;

(g) The Claimant moved to Poland at a time when he did not appear to have another role secured (indeed he did not inform the Tribunal of any such role and he did not work from late August to October 2021, indicating he had not lined up a role to move to seamlessly to);

(h) He was not suffering the effects of any condition to such an extent that he was unable to continue working as an HGV driver both immediately after his dismissal (in the UK) and again from October 2021 (in Poland);

(i) There was no medical evidence to suggest that the Claimant had a mental health condition; and

(j) There was no medical advice or evidence to suggest that leaving the UK (or alternatively returning specifically to Poland) would be beneficial to his mental health. It is something that the Claimant discussed with his wife (not a medical advisor) and decided upon between them because they considered it would be good for his mental health.

[37]Therefore, whilst we find that the dismissal may have been part of the reason why the Claimant chose to relocate to Poland in late August 2021, that was not a reasonable choice to make in terms of the duty to reasonably mitigate.

[38]We are not aware of any similar cases or authorities in respect of claimants who choose to relocate overseas and the impact on mitigation and damages. However, we have considered the principles from cases on career changes and retraining as potentially analogous. We have not found that the Claimant was in some way hampered in his field as a result of the dismissal (as was the case in Tchoula), nor that there was a lack of work available to him in the UK, such that relocating was a reasonable act of mitigation.

[39]Further, we find that such loss as was caused by relocating to Poland was not a reasonably foreseeable consequence of the dismissal and it was not caused by the dismissal but by a separate life choice.

[40]Further and in any event, we do not consider that it would be just and equitable for the Respondent to pay for the losses suffered by the Claimant that flow from the relocation to Poland, when the Claimant could have remained in the UK (where he was well settled) and where there was plenty of work available for him and at a higher rate of pay.

[41]Accordingly, we find that the Respondent is not responsible for any losses suffered as a result of the Claimant’s decision to relocate to Poland in late August 2021. As such, the loss of income recoverable under the Compensatory Award is one week’s pay, being the period between the date of termination (17 May 2021) and obtaining new work through an agency on 25 May 2021, as referred to above.

[42]The Claimant’s average weekly net pay at the Respondent was £533.40, using the payslips provided for the year 2019 (which gives a slightly lower rate than the £577 per week claimed in the Claimant’s schedule of loss, which was not explained / substantiated in any way).

[43]The Claimant was entitled to pension contributions and therefore will be compensated for the losses for pension for that week. Taken from the payslips, the employer’s pension contribution that the Claimant received at the Respondent was 3%. Accordingly, he is entitled to £16.005 by way of pension loss for that week.

[44]We acknowledge that the Claimant had long service and hence his loss of statutory rights includes not only the loss of protection from unfair dismissal and for redundancy pay, but also for the statutory long notice he had accrued (12 years’ notice). Accordingly, we award him the higher end of the customary sum for loss of statutory rights, namely £500.00.

[45]In total then, the compensatory award is £1049.40.6

[46]Section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) provides that if: ‘it appears to the employment tribunal that –(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable, the employment 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%’.

[47]In the present case, we found that the real reason for dismissal was conduct, such that the ACAS Code applies. We also found that the Respondent followed no process whatsoever in dismissing the Claimant despite having taken legal advice before doing so. The Respondent is not a new business and it has 45-50 staff (including 10 office based staff). Therefore, whilst it has no HR department / resource, its failure to follow the ACAS Code is unreasonable. There was no explanation for such failures. We therefore apply the ACAS uplift of the full 25%. Accordingly, the total compensatory award is uplifted to £1,311.75.7

[48]The Claimant indicated in his schedule of loss that he wanted to apply for preparation time costs in the sum of £4,200 plus certain expenses. We did not have time at the hearing for such an application to be made (if indeed the Claimant continues to want to make it). Nor did we hear from the Respondent on this matter. The schedule of loss did not indicate the basis on which the application was advanced, nor did it set out how the 100 hours claimed had been incurred. It is a matter for the Claimant if he wishes to advance any such application. For present purposes, the Tribunal has neither heard nor determined such an application. 5 3% of £533.40 6 £533.40 + £16.00 + £500 = 1,049.40 7 £1049.40 x 1.25 = £1,311.75