Mr A Charzynski v Clearview Glaziers Company Ltd: 3312575/2020
JUDGMENT
[1]The claimant was unfairly dismissed by the respondent.[2]The Tribunal considers that the conduct of the claimant before his dismissal was such that it would be just and equitable to reduce the basic award by 50%.[3]The Tribunal having found that the claimant’s dismissal was contributed to by his actions, the Tribunal considers that it would be just and equitable to reduce the amount of the compensatory award by 50%.[4]The Tribunal makes the following awards of compensation pursuant to s.112(4) of the Employment Rights Act 1996:a. A basic award of £675b. A compensatory award of £2,568.55[5]The claimant’s complaint that the respondent discriminated against him on grounds of race is dismissed on the basis that it is withdrawn by him.REASONS
[1]By a claim form presented to the Employment Tribunals on 20 October 2020, following ACAS early conciliation between 11 September and 11 October 2020, the claimant brought complaints against the respondent alleging that he had been unfairly dismissed, discriminated against on the grounds of race, that he is entitled to a statutory redundancy payment and that he is owed holiday pay. The complaints are denied by the Respondent. Background and Procedural Matters[2]With the written consent of the parties, the Tribunal proceeded to hear the case sitting as an Employment Judge with just one non-legal member drawn from the employee panel, as the other intended member was indisposed through ill-health.[3]The claimant’s discrimination complaint is expressed in general terms, namely that the claimant was laughed at many times for not being able to speak English. His only specific allegation is that he was laughed at during a Christmas meeting at work; it was subsequently clarified in correspondence between the parties that the claimant was referring to a Christmas party in December 2017 at a local pub. However, in that same correspondence the claimant failed to identify who had laughed at him and what had been said. The respondent’s Managing Director, Robin Squibb became particularly animated when addressing these allegations in the course of his evidence at Tribunal and this seems to have reflected his stated close personal connections with the Polish community. Putting aside that the claimant did not raise any concerns with the respondent during his employment that he had been discriminated against or otherwise that he had experienced unwanted conduct which had the purpose or effect to violating his dignity or creating an intimidating, hostile, degrading, humiliating or offence environment for him, his complaints are hopelessly vague. In so far as he makes any complaint about events at the 2017 Christmas party (and about which he has only a limited recollection given the quantity of alcohol consumed by him on that occasion), the complaint is significantly out of time. In the course of his closing submissions, Mr Kamil Charzynski (referred to throughout this Judgment as Mr Charzynski) informed the Tribunal that the claimant was not pursuing his discrimination complaint and agreed that it should therefore be dismissed on the basis of its withdrawal.[4]The claimant gave evidence at Tribunal through an interpreter. He has only a limited grasp of English and accordingly a limited ability to converse with others who do not speak Polish. Neverthess, he and Mr Squibb seem to have established a basic level of understanding, for example such that the claimant could understand and perform his day-to-day tasks, borrow company vehicles from time to time, ask for and work overtime, and negotiate his pay. However, the claimant’s grasp of English falls some way short of conversational level.[5]Mr Charzynski gave evidence in support of his father’s claim and there were also written statements by the claimant’s wife, Renata Charzynski, and two friends/acquaintances, Marcin Lewendowski and Julia Kwiatecka. On behalf of the respondent, we heard evidence from Mr Squibb, Deborah Thompson (who is effectively Mr Squibb’s personal assistant) and Gary Bateman (the Respondent’s General Manager); we also considered written statements from Dean Merryweather (Road Engineer), Lukasz Krupa (Shop Floor Fabricator) and Kirsty Cox (Administrator). We have inevitably given less weight to the evidence of those witnesses who made statements but did not attend Tribunal to give evidence.[6]There was a single agreed bundle of documents running to 87 numbered pages albeit with additional lettered inserts. The page references in this judgment are to the relevant page numbers of the hearing bundle.[7]The central issue in this case is whether the claimant was dismissed from his employment with the respondent or whether, as the respondent asserts, he resigned his employment.[8]The general rule is that unambiguous words of dismissal or resignation may be taken at face value without the need for any further analysis of the surrounding circumstances. However, problems can arise when words or actions give rise to ambiguity either by their very nature or because of the circumstances in which they took place. The test of whether ambiguous words or actions amount to a dismissal or a resignation is an objective one, requiring consideration of all the surrounding circumstances. If, in light of the surrounding circumstances, any words or actions remain ambiguous the Tribunal should ask itself how a reasonable employer or employee would have understood them in the circumstances; any ambiguity is likely to be construed against the person seeking to rely on them (Graham Group plc v Garratt EAT161/97). In considering the surrounding circumstances, the Tribunal will look at events both preceding and subsequent to the events in question. The Tribunal should not approach its task in an overly technical way but focus instead on what an ordinary, reasonable employer and employee would understand. In Goodwill Incorporated (Glasgow) v Farrier EAT 157/89 and Tom Gobleigh plc v Young EAT 292/97 the fact an employer subsequently sought clarification as to whether an employee’s words amounted to a resignation indicated the employee in question has not resigned. Findings of Fact and Conclusions[9]The claimant commenced employment with the respondent on 30 November 2016 and was working as a fitter when his employment with it ended. Whilst it is common ground between the parties that the claimant’s employment terminated on 3 July 2020 the only evidence that points to that date being the date of termination of employment is the claimant’s P45 at page 66 of the hearing bundle. The P45 was issued on 14 July 2020.[10]The parties evidently enjoyed a good working relationship. The claimant’s attributes and potential were recognised early on in the relationship. Mr Squibb described the claimant as a reliable, punctual and hardworking individual who was an asset to the business. We find these and other effusive comments by him about claimant were genuinely held and expressed, and that had the claimant remained in the respondent’s employment Mr Squibb and Mr Bateman would have been supportive of his continued development and progression.[11]The claimant’s contract of employment is at pages 57-65 of the hearing bundle. The holiday provisions are at clause 18. The claimant was required to submit annual holiday requests to management as early as possible, using a holiday request form, giving a minimum of 2 weeks’ prior notice of any planned holiday. The notice provisions are at clause 21 of the contract. Following the successful completion of his probationary period the claimant was required to give one month’s notice in writing to terminate his employment with the respondent.[12]The hearing bundle contains a series of emails issued to the respondent’s staff in the early weeks of the Coronavirus pandemic. They evidence Mr Squibb’s concern for the company’s staff and a desire to do the right thing. Staff were immediately furloughed. The emails evidence that staff were kept as fully informed as possible during what was a period of significant global and national uncertainty and insecurity. Whilst the focus of the emails was that staff should stay safe, the respondent made clear that they might be required to return to work at very short notice should circumstances permit. Mr Charzynski supports his father with his communications and work related matters. The claimant said during his evidence that his brother sometimes opens his post for him and relays the contents to him. It was not suggested by the claimant, or by Mr Charzynski on his behalf, that he was unaware that he may need to return to work at short notice. We find that he was fully aware of the Respondent’s requirement in this regard and accordingly that he was expected to be on standby to immediately return to work. He was aware, that a number of his colleagues returned to work on 4 May 2020, including Mr Lewendowski. We find that he was also aware by around 12 May 2020 that the respondent was exploring the possibility of bringing the entire workforce back by the end of the month. In the event, it was not until nearer the end of June 2020 that the respondent actively sought the return of those remaining staff who were then furloughed, including the claimant.[13]Unknown to the respondent the claimant made plans to travel to Poland. He did so without discussing or agreeing the matter with the respondent. He had asked, but we find had been refused permission, to take annual leave towards the end of May 2020. He was in no doubt about the matter since Mr Charzynski contacted Mr Squibb on his behalf reiterating his request to take annual leave. The requests were refused by Mr Squibb as he was understandably keen to secure the return of staff to the workplace given that the business had effectively been closed for an extended period. The claimant took it upon himself to travel to Poland regardless, perhaps believing that he would be able to return to the UK at short notice if necessary. Given the travel disruption experienced at the time and the evolving and rapidly changing requirements in relation to quarantine, we regard the claimant’s actions as unwise, indeed unreasonable. It is unclear exactly when the claimant travelled to Poland except that this is likely to have been in or around mid-June 2020. The claimant returned from Poland on 6 July 2020.[14]During the claimant’s absence in Poland the respondent had endeavoured to contact him without success. Mr Squibb wrote to him on 25 June 2020 informing him that the company needed him to return to work. They asked him to get in contact with the office in order that they might confirm his return date. They reminded him that he had previously been informed that he might be required to return to work on a day’s notice.[15]Mr Squibb is dyslexic; at Tribunal he readily volunteered details of his difficulties with reading and writing and in dealing with correspondence as well as emails and messages. His correspondence is largely dealt with on his behalf by Ms Thompson. We accept that she was responsible for preparing and sending a letter to the claimant from Mr Squibb on 25 June 2020. We are satisfied that the letter was sent to the claimant and find, on the balance of probabilities, that it was received by him albeit only following his return from Poland on 6 July 2020. Similarly, the claimant did not immediately receive Mr Squibb’s follow-up letter dated 2 July 2020 (page 40), though again we find the letter was sent to him. Whilst the second letter refers to “our recent telecom” Mr Squibb was in fact referring to a telephone conversation on 30 June 2020 between the claimant and Mr Bateman, with Mr Krupa in attendance. The call is evidenced in the claimant’s telephone records at page 40g of the hearing bundle. These confirm that that there was a telephone call at 5:48pm lasting 6 minutes 58 seconds. Unfortunately, Mr Krupa does not address in his witness statement what was discussed during that call. Nor do we have a copy of a text message that Mr Krupa subsequently sent to the claimant at 6:53am on 1 July.[16]At paragraph 4 of his written statement dated 21 October 2021, Mr Bateman confirms a lack of understanding on the part of the claimant when Mr Bateman asked him on 30 June 2020 why he had not been in contact and had not returned to work. He says that when he asked the claimant whether he was returning to work the claimant said, “I weld”. He alleges that he passed the phone to Mr Krupa to translate for him and was told that the claimant had said “I have a new job as a welder, and it pays more money”. Mr Bateman’s evidence is that this was the end of the conversation. One of the difficulties with Mr Bateman’s evidence is that he says in his witness statement that he asked the claimant on 30 June why he had not returned to work on 6 July. Clearly, he cannot have asked the claimant about something that had not yet happened. He seems therefore to have conflated what was discussed on 30 June with what was subsequently discussed in a later conversation on 13 July. But even if, which is not certain, the claimant had said on 30 June that he had a new job as a welder, on Mr Bateman’s evidence the claimant did not explicitly state that he was resigning his employment or that he would not be returning to work.[17]There is certainly no evidence before the Tribunal that by 30 June 2020 the claimant had been offered a new job, let alone one that paid him more money. On the contrary, after he left the respondent’s employment, he took a job which for some time paid him a lower hourly rate of pay. We bear in mind that whatever the claimant said on 30 June, Mr Bateman received this second hand from Mr Krupa who was translating what he believed had been said.[18]Whilst Mr Squibb referred in his letter of 2 July 2020 to the fact the claimant had allegedly informed the company that he had found a job elsewhere, it is equally clear from the letter that in writing to the claimant he was seeking clarification as to whether the claimant did in fact have an offer of another job and was indeed intending to resign his employment. In other words, there was material ambiguity and uncertainty as to what the claimant had said and intended. Mr Squibb’s letter concluded, “Should we not receive a response from yourself by the 9 July we will forward your P45 and end your contact. There would have been no need for the company to end the claimant’s contract if in fact he was believed to have resigned.[19]Following the claimant’s return from Poland on 6 July 2020 he did not return to work. We cannot be certain as to when the claimant first fully appreciated the contents of Mr Squibb’s letters of 25 June and 2 July 2020. We think there is force in Mr Squibb’s evidence that the claimant may have thought he was in trouble for having gone to Poland for a holiday in circumstances where his request for holiday leave had previously been refused. It seems likely that he buried his head in the sand on his return. That said, whilst Mr Squibb had asked the claimant in both his letters to get in touch with him, neither letter identified a date by which the claimant was expected back at work. Be that as it may, we are puzzled by the claimant’s failure to get in contact with Mr Squibb given the respondent’s stated intention to issue the claimant’s P45 and end his employment should it not hear from the claimant by 9 July 2020.[20]The respondent evidently remained uncertain as to the claimant’s intentions, since it did not issue the claimant’s P45 or terminate his employment when it had still not heard from him by 9 July 2020. Instead, various further efforts were made to contact the claimant on 13 July 2020. Mr Bateman called the claimant at 3:27pm and they spoke for 4 minutes 57 seconds albeit Mr Bateman remained uncertain as to the claimant’s intentions. Mr Krupa then sought to contact the claimant a few minutes later but his initial call went through to the claimant’s voicemail. The call records at page 40h of the hearing bundle evidence a call between the claimant and Mr Krupa on 13 July 2020 lasting 3 minutes 5 seconds at 5:26pm with a follow-up call the same day from Mr Merryweather of the respondent to the claimant at 6:34pm. It was only following these calls that action was taken to progress the claimant’s departure, his P45 being prepared on 14 July 2020 with a given leaving date of 3 July 2020. The P45 was emailed to the claimant at 12:12pm on 14 July 2020 by an accounts assistant at the respondent’s accountants.[21]As noted already, when considering all the circumstances, the Tribunal will look at events both preceding and subsequent to the words or actions in question. In her witness statement, Mrs Charzynski states that her husband became distressed on 13 July 2020 and told her that he had lost his job. Mr Lewendowski’s evidence is that the claimant told him on 14 July 2020 that he was looking for new employment as he had been dismissed from the respondent’s employment and was without work. Ms Kwiatecka’s evidence is that she overheard a conversation between Kamil Charzynski and a member of the respondent’s staff on 13 July 2020 to the effect the claimant should find himself a new job. The claimant sent a text message to Mr Squibb at 4:39pm on 14 July 2020 (page 82) in which he referred to having received an email regarding his dismissal. We find he was referring to the email from the respondent’s accountants attaching his P45. The claimant asked Mr Squibb, “…Can you please tell me why this decision has been made? Also, is there any chances that you could rehire me and should I look for another job?” He did not receive any response to that text. He also exchanged messages with Karolina Krzyzanowski (pages 86 and 87) in which she said she had heard he’d been dismissed and to which he responded, “… Yes, it’s true he called me yesterday and told me that he me dismissed me and when big work starts, he will call me…”[22]Finally, we note the contents of a letter written by Kathy Evans, Accounts/Office Manager & PA to MD at Bellview Products Limited, the company that now employs the claimant, in which she confirms that the company was approached on the claimant’s behalf on 21 July 2020 regarding the possibility of employing the claimant and that the claimant started work with the company the following day.[23]In our judgement, the overwhelming weight of evidence is that the claimant did not resign his employment on 30 June 2020 or thereafter. The surrounding circumstances do not resolve what he intended when he said to Mr Krupa on either 30 June or 13 July 2020 words to the effect, “I have a new job as a welder”. We have asked ourselves how a reasonable employer would have understood the claimant’s comments in circumstances where they were expressed in Polish and relayed second hand in English. The respondent itself evidently did not understand the claimant to have resigned his employment. On the contrary, the fact it sought clarification of the claimant’s intentions confirms to us that, as the respondent did, a reasonable employer would not have understood the claimant to have resigned. We are further supported in that conclusion by Mr Squibb’s letter of 2 July 2020 which effectively recognised that the respondent would need to take steps to end the claimant’s employment if he did not return to work. The position remained unchanged as at 9 July 2020 even though the claimant had by then failed to attend work or, at the very least, had failed to make contact with the respondent as requested. At the highest, the claimant was absent from work without leave, though even then the respondent had not specified a date on which it was expecting him to return to work. If anything, the claimant’s intentions were less clear following the telephone calls on 13 July 2020 since these merely confirm his fundamental lack of understanding and Mr Bateman’s lack of confidence as to the claimant’s intentions. In our judgement by 13 July 2020 a reasonable employer would still not have understood the claimant to have resigned his employment. Instead, in circumstances where the claimant’s difficulties with English and reliance upon his son were well known, we think a reasonable employer would only have acted upon a clear and unambiguous written statement of resignation or, failing that, an equally clear and unambiguous statement of intent communicated through the claimant’s son rather than translated comments in ambiguous terms conveyed through a work colleague. As of 13 July 2020 Mr Charzynski was unambiguously stating that his father had not resigned his employment.[24]By its actions in arranging for the claimant to be issued with a P45, we find that the respondent dismissed the claimant from its employment on 14 July 2020. We conclude that the reason it dismissed the claimant was because it was uncertain as to whether he intended to continue in its employment and wished to have certainty in the matter. Whilst that may potentially have amounted to some other substantial reason for dismissing the claimant within the meaning in section 98(1) of the Employment Rights Act 1996, and that the claimant’s conduct in failing to contact the respondent following his return from Poland may also have been part of its reasons for terminating his employment, in our judgement the respondent acted unreasonably in treating this as sufficient reason for dismissing the claimant. Notwithstanding its letters of 25 June and 2 July, the respondent ought reasonably to have invited the claimant to attend a formal meeting on a prescribed date and at a prescribed time to discuss the situation and warned him as to the potential consequences should he fail to attend the meeting. Further, given his language difficulties, it ought reasonably to have afforded him a right to be accompanied at that meeting, potentially by his son if it could not arrange for an interpreter to be present. And, whether or not the claimant attended any meeting, it ought reasonably to have afforded him a right of appeal in the event he was dismissed. In our judgement, no employer acting reasonably in the matter would have terminated the claimant’s employment on the strength of his initial failure to respond to two letters, particularly in circumstances where it had not specified a date by which he must return to work and given his evident difficulties in understanding the respondent when contact was finally established between them on 13 July 2020. Any reasonable employer would also have offered a right of appeal in the circumstances in this case. We conclude in the circumstances that the claimant was unfairly dismissed.[25]Pursuant to s.123(1) of the Employments Rights Act 1996, where a Tribunal upholds a complaint of unfair dismissal, it may award such compensation as it considers just and equitable in the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal. In accordance with the well established principles in Polkey v AE Dayton Services Limited [1988] A.C.344, the Tribunal may make a just and equitable reduction in any compensatory award under s.123(1) to reflect the chance that the employee’s employment would or might still have terminated in any event. The burden of proof in relation to matters of chance rests with the respondent as employer. Nevertheless, Tribunals are required to actively consider whether a Polkey reduction is appropriate. The Tribunals must have regard to all relevant evidence, including any evidence from the employee and the fact that a degree of speculation is involved is not a reason not to have regard to the available evidence, unless the evidence is so inherently unreliable that no sensible assessment can be made. It is not necessarily an ‘all or nothing’ exercise. Applying Polkey principles in practice requires an evidence based approach, drawing upon common sense and experience. In the final analysis the Tribunal must ensure that any reduction reflects the justice and equity of the matter. In this regard, Mr Squibb’s evidence could not have been clearer. He said the claimant was by far the best fitter he had ever employed. He said he was “hardworking, reliable and decent” and “I want people like him back”. He stated that other staff had gone on holiday whilst furloughed without first securing the respondent’s approval to take holiday. He said that none of them had been dismissed from the respondent’s employment and that he recognised the unique situation in which people found themselves during the pandemic. His typed written statement concludes as follows: “I was unaware of his visit back to Poland and if I was aware this would not be a dismissal offence.”[26]Had the respondent acted fairly in the matter by inviting the claimant to attend a meeting to discuss his failure to contact the company following its letters of 25 June and 2 July 2020, and listened to what he had to say, we are confident that any misunderstanding between them would have been resolved. The respondent has failed to establish any possibility that the claimant’s employment with it would have terminated, on the contrary its evidence is that he would not have been dismissed for his actions in travelling to Poland and that it wanted to retain the claimant given his skills and attributes. Accordingly, we make no reduction in the claimant’s compensation in accordance with Polkey.[27]However, this is a case where justice and equity requires that we make a reduction to both the basic and compensatory awards to reflect the claimant’s conduct prior to his dismissal which contributed significantly to his dismissal and which also falls to be considered under section 122(2) of the Employment Rights Act 1996. Confusion and uncertainty arose in this case because the claimant took it upon himself to go to Poland knowing that the respondent had refused his holiday request and in circumstances where he also clearly understood that staff needed to be available to return to work from furlough on as little as 24 hours’ notice. In the circumstances the claimant had a particular responsibility to ensure he was contactable and that correspondence or other messages from the respondent were brought to his attention and responded to promptly. By travelling to Poland, the claimant affectively put himself out of contact and he remained out of contact during the entire week following his return from Poland. He further contributed to the confusion and uncertainty by failing to ensure that his position was clearly communicated to the respondent. He was aware of his limitations in terms of the English language and knew that he was reliant upon his son in this regard. In our judgement, he could and should have done more to ensure that Mr Charzynski clearly and unambiguously communicated the reasons for his lack of contact with the respondent following its letters to him of 25 June and 2 July 2020, namely that he had taken an unauthorised holiday. The respondent may have acted prematurely and unreasonably in dismissing the claimant and in failing to follow any process before dismissing him, but in our judgement he is equally culpable in the matter. We consider that it would be just and equitable in such circumstances for the basic and compensatory awards to each be reduced by 50% to reflect his equal culpability in the matter.