Mr G Romano v Norwich City Football Club plc: 3313352/2023
JUDGMENT
(1) The Claimant was an employee with two years continuous service at the date his working relationship with the Respondent was terminated.(2) The complaint of unfair dismissal succeeds.(3) The complaint of race discrimination is dismissed.REASONS
[1]This is a claim for unfair dismissal and race discrimination brought on 21 November 2023.[2]The Claimant is a man of Italian ethnicity. He worked for the Respondent between 20 October 2011 and 6 October 2023 when his working relationship with the Respondent was terminated.[3]We heard evidence from the Claimant and, for the Respondent, from Mr Matt Wells (MW), Head of Education, Mr Joe Shulberg (JS), Academy Manager, Mr 1 of 12 James Hill (JH), Legal and Governance Director, and Mr Perry Hamilton (PR), Head of Human Resources. We were also referred to a bundle of documents. On that evidence, we make the following findings of fact.The Facts
[4]Throughout the relevant period the Claimant held a primary job working for Royal Mail on a 37 hr/week contract. He initially began working for the Respondent in October 2011 solely in the capacity of a Safety Steward for home fixtures of the first team. He applied on an application form given to him by another steward but was never given a contract or any other paperwork. Rather, he was simply instructed to attend every home game, arriving two hours before kick-off. He would sign in and then be given a briefing by his Section Head and would stay at the football ground for a total of 4.5 hours, for which he was initially paid £24 in cash.[5]There was no communication between the Claimant and the Respondent as regards his attendance at home fixtures. It was simply expected he would start attending the first team home fixtures when the season started and that he would attend every home game. If the Claimant couldn’t make a particular fixture for any reason, he understood that he was merely required to let the Respondent know at the match before that he couldn’t attend the next one. In the event, over the course of 12 years, which would have amounted to more than 200 fixtures, the Claimant only ever missed two matches, one of which was because a match was rescheduled to a date when he was on holiday.[6]In his role as a Safety Steward, at the beginning of each season the Claimant was issued with a handbook setting out the duties of the stewards and a code of conduct. The code of conduct (in the copy of the handbook with which we were provided for 2023/2024) provides, amongst other things, that the stewards must wear the uniform provided by the Club, keep their jackets fastened at all times, always display their identification card, not eat or drink or use their mobile phone while on duty, must “sit or stand smartly” and must not “stand with their hands in their pockets or lean against walls or other structures”.[7]Some years prior to the hearing the Claimant was promoted to the role of Section Head for which he received a higher rate of pay. Again, there is no documentary evidence in respect of that promotion.[8]As the years progressed the Claimant did more and more work for the Respondent in addition to his work at the first team home fixtures. This included regular security work at the football club for events and concerts (including in their social spaces) as well as regular work at the training ground, both throughout the football season and out of season. The way this additional work came about was that Kerri Beck (KB), Deputy Stadium Operations Manager, and referred to as the Claimant’s line manager, would message him on Facebook messenger asking if he was free to do the work in question and the Claimant would say “yes” or “no”. The Claimant always tried to say “yes” but accepted there were many occasions when he had to say “no” because he had to put his main job with Royal Mail first, which KB understood. There was never a problem if the Claimant refused any offer of work. Nevertheless, the Claimant’s evidence, which the Respondent accepted, was that during the last 2 of 12 two years of his working relationship with the Respondent, he was working so frequently that he did some work for the Respondent every week of the year.[9]The Claimant’s pay slips show that he was paid slightly different rates of pay for the different types of work he undertook, and that he was paid net of PAYE deductions and employer pension contributions.[10]On 25 September 2023 the Claimant was sent a letter asking him to attend an investigation meeting on 27 September 2023 into the allegation “that you have sent messages of an inappropriate nature, which could be considered discriminatory, to a member of Norwich City Football Club staff”. The Claimant said he did not receive the letter but was told he had to attend the meeting by KB. The investigation meeting was conducted by MW.[12]At the meeting on the 27 September 2023 the Claimant was asked if he remembered sending a WhatsApp message to Neil Hunter (NH), Head of Academy Operations. The Claimant didn’t remember sending any such message. He was then shown a screen shot of two images received by NH. The first was a photograph, purportedly of Nicola Sturgeon (NS) holding a placard reading “Russell Brand Touched my cock”. The second was a photograph, purportedly of Diane Abbott (DA) with the caption “I was alone with Russell Brand And he never touched me”. This was at the time when the media was reporting that allegations of sexual assault were being made against Russell Brand.[13]The Claimant explained that he had received the messages on his phone from a friend. He hadn’t meant to send the messages to NH or even realized that he had done so. He had intended to send the messages to a close friend of his called Neil Brooksby. The Claimant had NH’s number in his phone because he had spoken to him about helping with the drivers but had never messaged or called him before mistakenly sending the messages in question.[14]The Claimant was then asked why he would send the message to a friend, and he said because it was funny “it is just what you do now sharing messages. I am confused…This was a mistake. I meant to send it to my mate”.[15]Later in the meeting the Claimant asked, “are you saying I shouldn’t send these in my personal life?” It transpired that this is precisely what the Respondent was saying, but instead of answering this question directly, MW replied “We aren’t judging you. We are here to understand the facts of the situation. They have been sent to a member of the Club staff, so we are doing the right thing by investigating it”.[16]The Claimant then repeated that it was a mistake, and he didn’t mean to send it to a member of staff.[17]He was then asked he if thought there was a discriminatory element to the messages and he said, “I don’t know, I just forwarded them on. I can’t give you an answer”.[18]On at least two occasions MW repeated that the Claimant was there because the messages had been sent by him to a member of the Club, who had then reported it, and “we have a duty to investigate it, whether it was a mistake or 3 of 12 not”. Pausing there, we note that that phrasing is ambiguous in the sense it could mean we have a duty to investigate whether the sending of the message was a mistake, or we have a duty to investigate regardless of whether the sending of the message was a mistake.[19]Following the investigation meeting, MW accepted that the Claimant had made a genuine mistake in sending the images to NH. Nevertheless, MW decided that because of “exacerbating factors” it was appropriate to convene a disciplinary hearing. The exacerbating factors were that the Claimant “had not shown sufficient understanding or any remorse for those who may find the content of the messages discriminatory”.[20]By letter of 29 September 2023 the Claimant was invited to a disciplinary hearing on 5 October 2023. The alleged misconduct was phrased in the same way as before, namely “that you have sent messages of an inappropriate nature, which could be considered discriminatory, to a member of Norwich City Football Club staff”. That hearing was chaired by JS.[22]At the outset of the disciplinary meeting MW delivered his investigation report. The notes record the Claimant stating that he “strongly disputed” the exacerbating factors. MW was asked by JS whether he had obtained any information from the Claimant’s line manager, KB, to establish whether “this was out of character”. MW replied that he hadn’t done so, because he didn’t feel it was appropriate to do so. At this point Zoe Rogers (ZR), HR support stated, “I had a conversation with Kerri, and nothing was raised in relation to Gennaro’s character.”[23]JS then asked if the Claimant had shown any remorse.[24]MW replied “In the meeting, no. He just came back to it being a mistake all of the time. The meeting tended to focus on that. We spoke of the discriminatory nature of the messages, we went through the protected characteristics displayed in the messages but he didn’t really show remorse”. That latter sentence was incorrect. MW accepted in evidence that neither he nor ZR had gone through any protected characteristics with the Claimant during the investigatory meeting.[25]The Claimant then said that previously he shouldn’t have used the word “funny” he should have used the word “banter”, because the messages were not public but between friends.[26]The meeting then progressed with JS and Kathryn Wright (KW), HR support, asking the Claimant why he considered the messages, funny, humorous or banter. The Claimant said the pictures were “not nice but I wouldn’t have shared it wider than my friends. I sent it by mistake and now I am being judged for it”. He said that “I understand that it is wrong” and that the messages “are discriminating against MPs”. He was then asked why the first image (of NS) was discriminatory and he said, “She’s not married”. When asked why that “linked”, he said he didn’t know. Later, he said, “I have made a mistake in forwarding and sharing to my friends”. 4 of 12[27]At one point the Claimant said, “Let’s just go back. I didn’t forward anything publicly. Are you saying I’m not allowed to forward things personally?” Again, this is precisely what it transpires the Respondent was saying but again instead of giving the Claimant a straight answer, JS’s reply was similar to MW’s reply at the investigatory meeting, he said, “You’ve sent it to a NCFC colleague, albeit by mistake but we have to investigate the images. We are not trying to make a judgment of you and your personal life, but we do have to investigate what has been raised”.[28]JS then read the Claimant a passage from the Club’s harassment policy, though he does not explain to the Claimant who he is supposed to have harassed.[29]KW then asked the Claimant what elements of discrimination could be inferred from those images. She suggested, without further specifics or explanation, “sexism”, “transphobia” and “racism”. The Claimant agreed with all three, but pointed out that he didn’t make the photo, he just forwarded it. Pausing here, we note that at no point during the disciplinary process did KW or anyone else from the Respondent explain to the Claimant why it considered the messages displayed sexism, transphobia and racism and despite the fact the Claimant agreed with what KW suggested to him, it is clear from his comments that the messages were “discriminating against MPs” and that NS was not married, that he was very confused.[30]Towards the end of the meeting the Claimant said, “I have been uncomfortable since the meeting last week. The images are what they are. I have been here a long time, and I have been judged on two pictures. I understand that they are wrong, no question but that doesn’t define me, those two pictures”. Shortly afterwards, KW said, “The lack of clarity we have received is clouding any apology or remorse you have shown.” To which the Claimant replied, ‘I apologized straight away, I am a Christian.” JS then said, “MW and ZR have attended today and said at the beginning that they felt there was a lack of remorse. KW is acknowledging that she shares the same.” To which statement the Claimant said, “I have shown remorse.” And at the end of the meeting the Claimant said again, “I will say it again, I am sorry. What I did was wrong, you can’t say I’m not sorry enough or I didn’t understand the pictures enough.”[31]The Claimant was dismissed at the meeting, and that decision was sent to him in a letter dated 9 October 2023. The notes of the meeting record JS stating that there had been a fundamental breakdown in trust, “the messages are discriminatory and we have spent a disproportionate amount of time talking about the mistake in sending them to an NCFC member of staff, rather than what they portray. Because of this your integrity has been questioned as well.”[32]In his evidence JS said that in reaching his decision he took no account of the Claimant’s length of service or his previous work record or character.[33]The Claimant’s evidence was that JS told him he “wasn’t fit to work at the club anymore”. JS denied he said this, however we prefer the Claimant’s evidence. We found the Claimant to be a very honest witness. Furthermore, in an email dated 9 October 2023, in which the Claimant stated he wanted to appeal the decision he stated, “I will never forget what was said about me, “I am not fit to 5 of 12 work for the club anymore””. That is a clear contemporaneous record of what was said to him.[34]The appeal was heard by JH on 23 October 2023 and dismissed by letter of 6 November 2023.[35]At the outset of the appeal, when asked to confirm the basis of the appeal, the Claimant stated: “Both meetings I was confused. I mentioned this a few times in both meetings. I can express myself but found it difficult to answer certain questions. If they ask me if I’m sorry for what I did, I would apologise, but I didn’t have that opportunity, that question was not given to me. I’m sorry for what I did, it was a mistake. I shouldn’t have forwarded the message, but it was a mistake. I only had [NH’s] number because I knew him from the training ground and I said if he ever needed a driver he could contact me.”[36]To this, JH stated that he had already heard the Claimant’s response to the original case and “we’re here to ask what is the basis for your appeal?”[37]The Claimant then said he was confused by the questioning that he “went into defense mode. I said I was sorry when I realized what I did…I know I shouldn’t have forwarded the messages. I’m sorry for what I did. I’ve been working here 12-13 years, that has not been taken into consideration.”[38]There was then some discussion as to how the Claimant said he was confused by the questioning.[39]At the end of the hearing JH stated: “If you read the Disciplinary Policy, you will see that under the Conduct & Behaviour section it explains that any act of gross misconduct can justify dismissal without notice. And then it lists examples of gross misconduct, and specifically mentions acts of discrimination and instances of harassment. So you understand what discrimination is, and you understand that the images you shared are discriminatory. You confirm you can read English, but have not read the Disciplinary Policy since it was issued to you before the disciplinary hearing on 5 October. Had you read the policy you would know that the outcome of the hearing is well within the outcomes available in the policy. But you still think the outcome was harsh. I don’t think I have anything further.”[40]In fact, in our judgment JH’s reading of the Disciplinary Policy, as explained to the Claimant in the meeting, was sloppy, inaccurate and unfair.[41]JH then asked if the Claimant had anything else to say in support of his appeal.[42]The Claimant said, “I’m sorry, I learned my lesson. I’m sorry for what I did, I hope I didn’t offend anyone,” a sentiment which he then repeated right at the end of the hearing.[43]In oral evidence JH stated that the outcome of the appeal would have been different if the Claimant had proactively apologized at the outset of the disciplinary process and shown a sufficient level of self-reflection and remorse. When it was pointed out to him that this would suggest that by the date of the appeal hearing he already considered it was too late for the Claimant to show sufficient remorse, JH stated that if the Claimant had said he was sorry at the outset of the appeal hearing that may have made a difference. It was then 6 of 12 pointed out that the notes do in fact record the Claimant apologizing at the outset of the hearing, to which JH could only say that his overall impression was that the Claimant had not been sufficiently remorseful. Conclusions Employment statusConclusions
[44]A contract of employment requires an obligation on the employee to perform the work personally, a mutuality of obligation as regards the obligation to offer work and the obligation to perform it, and for there to be some form of control over the employee by the employer.[45]We do not consider there was any umbrella or global contract of employment between the Claimant and the Respondent which existed even when he was not engaged on work assignments because there is no evidence that there was an obligation on the Respondent to offer work or on the Claimant to take work. Although the expectation was the Claimant would attend each home match unless he informed the Respondent, he didn’t have to ask the Respondent’s permission not to attend any particular match, he simply had to inform the Respondent that he could not attend. The lack of mutuality of obligation is even more evident in relation to the other work the Claimant did for the Respondent, as it was clear from the evidence that the Claimant was able to accept or refuse the work offered to him by KB as he wanted[46]However, we are satisfied that each time the Claimant worked for the Respondent he was engaged pursuant to a contract of employment which lasted for the duration of that assignment. Once he arrived at a home fixture or accepted an offer of other work, he was obliged to carry the work out and could not simply have gone home at a time of his choosing. Further he could not have sent a substitute to do the work on his behalf. Moreover, it is clear from the Safety Steward handbook – which the Claimant had to carry with him – that the Respondent exercised a great deal of control over the Claimant, including providing him with uniform and detailed instructions about how he conducted himself. Further, it was not suggested that the Respondent exercised any less control over the Claimant when he was doing other types of work, and in respect of all the work the Claimant did for the Respondent he was treated as an employee in terms of his pay and PAYE deductions, and employer contributions into a pension fund.[47]Furthermore, Mr Chapman accepted that, if, as we have found, the Claimant was engaged pursuant to a series of separate employment contracts, he worked so regularly for the Respondent in the two years prior to the termination of his working relationship that part of every week was governed by a contract of employment so that his continuity of employment was not broken (s.212 Employment Rights Act 1996). 7 of 12[48]It therefore follows that at the date of the termination of his employment relationship with the Respondent the Claimant was an employee with two years continuous service and has the right to bring a claim of unfair dismissal. Unfair Dismissal[49]The reason relied upon by the Respondent for the dismissal is conduct, namely that the Claimant sent messages of an inappropriate nature, which could be considered discriminatory, to a member of Norwich City Football club staff.[50]Accordingly, since conduct is potentially a fair reason for dismissal within the meaning of s.98(1)(a) of the Employment Rights Act 1996, the question is whether the dismissal is fair or unfair within the meaning of s.98(4), that is to say, whether in the circumstances, and taking into account the size and administrative resources of the Respondent, the Respondent acted reasonably or unreasonably in treating that conduct as a sufficient reason for dismissing the Claimant.[51]In addressing this question, it is necessary to consider whether the Respondent had a genuine belief in the Claimant’s guilt, whether there were reasonable grounds for that belief, and whether the outcome of dismissal was reasonable in all the circumstances.[52]The Claimant has accepted that he is guilty of the conduct alleged and therefore the real issue for the Tribunal is whether the outcome of dismissal was reasonable in all the circumstances.[53]In this respect we are mindful that it is not for the Tribunal to substitute its view for that of a respondent, if the outcome of dismissal is harsh but within the range of reasonable responses open to a reasonable employer the Tribunal cannot interfere simply because it would have reached a different decision. However, in this case we find that the sanction of dismissal was not within the range reasonable responses open to the Respondent, the decision-making process by which the decision to dismiss was reached was riddled with unfairness and it was not one which any reasonable employer would have taken.[54]These are our reasons for reaching that conclusion:[55]The Respondent’s Disciplinary Policy states that gross misconduct “is conduct so serious that it justifies dismissal without notice or payment in lieu of notice, although the Club will always consider the circumstances of the case before deciding on the appropriate penalty”.[56]It then goes on to set out examples of gross misconduct. The only acts of gross misconduct included in the list that are potentially relevant to the present case are: 8 of 12• “instances of bullying or harassment (whether it takes place in person or online)”• “acts of discrimination against fellow staff members, clients or customers” and• “any conduct that negatively affects our reputation (bringing the employer into disrepute)”.[57]Contrary to the assumption of JH at the appeal hearing, the Claimant’s conduct did not fall within any of these examples.[58]In this respect it is accepted that the Claimant sent the messages to the member of the Respondent, NH, by way of genuine mistake. Further, there is no evidence that NH considered himself to have been harassed by having received the messages or was even offended by the messages. The only evidence we have in respect of NH is an email from him to Kathryn Wright of HR stating “[the Claimant] messaged me on Wednesday 20 September with two picture messages that I found inappropriate.” That email stated it attached a summary of a report from NH regarding the matter, but that report was not in the bundle. Furthermore, MW did not consider it necessary even to speak to NH for the purposes of his investigation.[59]Accordingly, the Claimant’s actions could not be said to amount to instances of “(bullying or) harassment” of NH, and Mr Chapman did not seek to argue that they did.[60]Nor did the Claimant’s actions amount to acts of discrimination against fellow staff members, clients or customers, and since the messages were not shared publicly there could be no suggestion that the Claimant’s conduct brought the Respondent into disrepute. We also note there was no suggestion that the Claimant sent the messages when he was at work or using a phone given to him by the Respondent.[61]Further there is nothing in the Disciplinary Policy that states that an employee who sends a private message outside of work to someone unconnected to the Respondent is potentially committing an act of gross misconduct, and runs the risk of being summarily dismissed, should the message come to the attention of the Respondent and the Respondent take the view that the message could be considered discriminatory. Nor is any such position set out in the Respondent’s Equality, Diversity and Inclusion Policy or its Harassment Policy.[62]While we note that the list of examples of gross misconduct in the Disciplinary Policy is not exhaustive, we consider that if (as it appears from the present case) the Respondent intends its Disciplinary Policy to have such an extensive, some might say Orwellian, reach, then it is incumbent on it to make that position clear.[63]Indeed, not only was the position not made clear in its policy documents, neither was it made clear to the Claimant during the disciplinary process. In both the investigation meeting and disciplinary hearing, the Claimant asked the direct question whether he was not allowed to forward such messages in his 9 of 12 personal life, but on neither occasion did he get a straightforward answer. Instead, in the disciplinary hearing the Claimant was read an excerpt of the Respondent’s harassment policy, without the relevance of that policy being explained or who he is supposed to have harassed being identified (although the only possible person he might have been said to have harassed is NH). It is therefore hardly surprising he was confused as regards exactly what he was alleged to have done that amounted to gross misconduct or entitled the Respondent to dismiss him and tended to return to the point that he had sent the messages to NH in error.[64]Furthermore, if, as it appears was the case, the Respondent was concerned the messages demonstrated that the Claimant might hold sexist or racist or transphobic views capable of impacting his work, the obvious thing for any reasonable employer to do would be to speak to the Claimant’s line manager. This is particularly so since the Claimant had worked for the Respondent in a public facing role for 12 years.[65]However, when JS asked MW at the outset of the disciplinary hearing whether he had obtained any contextual information about the Claimant from KB, MW said that he hadn’t because “he didn’t feel it was appropriate to do so”. We consider it plainly would have been appropriate for MW to do so.[66]ZR then said that “she had a conversation with KB and nothing was raised in relation to [the Claimant’s character]”. However, what ZR doesn’t tell JS is that it appears from the notes of the appeal hearing that KB had in fact given the Claimant a positive character reference, indeed her character reference appears to have been the only reason why the Respondent went through any disciplinary procedure at all. In this respect the notes of the appeal hearing record PH stating “But it was after discussion with KB and Andy Batley that we decided to give you the opportunity to provide a response and a defense to the allegations. It was KB’s character reference that provided you with this opportunity, rather than the Club just ending your engagement”. If ZR knew that KB had provided a positive character reference for the Claimant her statement to JS (that “nothing was raised in relation to the Claimant’s character”) is disingenuous by omission. Even if she didn’t know, the fact is that no proper enquiries of KB were made when they plainly should have been.[67]We further note that the Respondent’s position throughout the disciplinary process and at the hearing before us was that the Claimant had shown insufficient remorse, that he had focused on his mistake in sending the images to NH, rather than showing remorse for the offensive nature of the images themselves. However, we also consider this position to be an unfair and unreasonable one.[68]At the time of the investigation meeting MW did not know whether the Claimant had sent the messages to NH deliberately or not, and the Claimant didn’t know he had sent them at all. Further the allegation of misconduct was phrased as sending “messages of an inappropriate nature, which could be considered discriminatory, to a member of the Norwich City Football Club staff”. It is therefore unsurprising that the Claimant focused on establishing that he hadn’t 10 of 12 sent the messages to NH deliberately. This is even more understandable given that when he asks the straight question “are you saying I shouldn’t send these in my personal life?” he didn’t get a straight answer. In addition, as stated above in paragraph 18 we consider that MW’s explanation to the Claimant as regards what he was investigating and why, would have been confusing even to someone for whom English is their mother tongue.[69]Furthermore, the notes of the Disciplinary Hearing and the Appeal Hearing record the Claimant apologizing repeatedly, both in respect of sending the messages to NH and forwarding the messages at all. The notes of the Disciplinary Hearing record him saying: the pictures are “not nice”; that “he understands [they] are wrong”, that he has “made a mistake in forwarding and sharing to friends”, and “I will say it again, I am sorry. What I did was wrong, you can’t say I’m not sorry enough or I didn’t understand the pictures enough.” The notes of the Appeal Hearing record him saying at the outset “I’m sorry for what I did, it was a mistake”; and later saying “I know I shouldn’t have forwarded the messages. I’m sorry for what I did” and “I’m sorry, I learned my lesson. I’m sorry for what I did, I hope I didn’t offend anyone.” Given that the Respondent at no time explained to the Claimant why it considered the messages to be discriminatory on grounds of sex, race and transphobia we do not understand what further or more comprehensive apology the Respondent could reasonably have expected from the Claimant.[70]Finally, when JS was asked in the hearing whether before reaching the decision to dismiss the Claimant he had taken into account his length of service, JS admitted he had not done so. In fact the Claimant had an unblemished record with the Respondent over a period of 12 years and there was no record of any complaints of any kind having been made against him, that this record was not considered by JS even to be relevant to the question as to whether it was appropriate to dismiss the Claimant for the misconduct in question was, in our judgment, yet another reason why the Respondent’s decision was plainly both unreasonable and unfair.[71]It follows that for all these reasons the claim of unfair dismissal is allowed. Race Discrimination[72]Despite the unfairness and flaws described above, we have seen no evidence that the Claimant was treated less favourably on grounds of his race or that he was treated less favourably on account of English not being his first language. Although the Claimant may well have wondered if his confusion was because English is not his first language, we consider he became confused because the approach and questioning by the Respondent was in fact inherently confusing.[73]The claim for race discrimination is therefore dismissed. 11 of 12 Approved By: REMEDY JUDGMENT(1) The application for reinstatement or re-engagement is dismissed.(2) The Claimant is entitled to a total monetary award of £7,835.40 in respect of his unfair dismissal comprising a basic award of £1,799.24 and a compensatory award of £6,036.16.(3) The Claimant is entitled to an award of four weeks’ gross pay, namely £464.32, pursuant to s.38 of the Employment Act 2002.(4) The total amount owed to the Claimant by the Respondent is £8,299.72.Introduction
[1]The background to this matter is set out in our liability judgment of 1 May 2025. At the remedy hearing today, we were provided with an additional bundle of documents, and we heard evidence and submissions from the Claimant and submissions from Mr Chapman. Reinstatement/Re-engagement 1 of 5[2]The Claimant’s primary objective in bringing this claim has been “to get his job back”, by which he means returning to his regular role as a Safety Steward at the home fixtures of the first team.[3]The difficulty, from the Claimant’s perspective, is that, as we have found in our liability judgment, he did not perform that role pursuant to an umbrella or global contract of employment. Rather, each time the Claimant worked for the Respondent he was engaged pursuant to a contract of employment that lasted only for the duration of that assignment and there was no obligation on the Respondent to offer the Claimant, or for the Claimant to accept, any subsequent assignment.[4]It follows that an order for reinstatement would not be a viable remedy for the Claimant. Such an order would require the Respondent to treat the Claimant as if he had not been dismissed (s.114 Employment Rights Act 1996 (ERA)), which, in this case, could only be an order requiring the Respondent to treat the Claimant as a casual worker to whom it was not obliged to offer any work or, alternatively, to reinstate the Claimant to his role of Safety Steward for the purposes of a particular assignment or home fixture, after the termination of which the Respondent would not be obliged to offer the Claimant any further work.[5]Accordingly, the only remedy which would have any “teeth” from the Claimant’s perspective would be an order for re-engagement pursuant to s. 115 ERA that he be employed as a match-day Safety Steward pursuant to an umbrella or global contract of employment.[6]Mr Chapman submitted that while the Tribunal had considerable discretion as regards the making of a re-engagement order, it could not make such an order that placed a claimant in a more favourable position than they enjoyed at the date of the dismissal, and in this case to make an order that the Respondent engage the Claimant as a match-day Safety Steward pursuant to an umbrella or global contract of employment would plainly do so. We broadly accept this submission.[8]In Rank Xerox (UK) Ltd v Stryczek 1995 IRLR 568, the EAT held that an employment tribunal had erred in ordering the re-engagement of an employee in a position which would have amounted to a promotion and stated that it is not permissible for a tribunal to order re-engagement on terms that are significantly more favourable than those which the employee would have obtained had reinstatement been ordered.[9]In this case to order that the Claimant be employed as match-day Safety Steward pursuant to an umbrella or global contract of employment would place him in a significantly more favourable position than he had prior to his dismissal, in particular there would be an ongoing employment relationship between the parties comprising an obligation on the Respondent to continue to offer the Claimant work at each home fixture. Such an arrangement would also place the Claimant in a different and more advantageous position than all the other Safety Stewards who are engaged on a match-by-match basis only. In short, we accept Mr Chapman’s submission that the power to order re-engagement 2 of 5 cannot be used to change the status of an employee from that of being a casual worker to that of being a permanent worker.[10]Accordingly, although we have much sympathy for the Claimant, who considers the loss of his role as match-day Safety Steward as irreplaceable and incapable monetary compensation, we refuse the application for re-engagement. Compensation Basic AwardCompensation
[11]It was agreed that at the date of his dismissal on 23 October 2023 the Claimant was 48 years old and had 12 years complete service. It was further agreed that his weekly pay, based on his average earnings in the 12-week period preceding his dismissal, was £96.74 net and £116.08 gross.[12]The basic award of compensation to which he is entitled is therefore £1,799.24 (being 15.5 x £116.08). Compensatory Award[13]The period of time between the Claimant’s dismissal and the date of this remedy hearing is 90 weeks (“the relevant period”).[14]The Claimant’s loss of income from the Respondent between the date of his dismissal and the date of the remedy hearing is therefore £8,706.60 (being 90 x £96.74).[15]The Claimant’s evidence was that he had not sought to replace his lost income from the Respondent with another job but had on occasions accepted more work from his employer Royal Mail.[16]The Respondent submitted that the extra income the Claimant had earned from Royal Mail since his dismissal should be set off against his loss of income from the Respondent.[17]We accept this submission insofar as that extra income was attributable to work done by the Claimant that he would not have done had he remained employed by the Respondent.[18]The Respondent had calculated the extra income earned by the Claimant in the following way:[19]First, by calculating the amount the Claimant had earned from Royal Mail in the year immediately prior to his dismissal, which was £24,520.15, and from that figure calculating his average weekly pay during that period.[20]Secondly, by calculating the amount the Claimant had earned from Royal Mail in the year immediately prior to the liability hearing, which was £26,567.55, and from that figure calculating his average weekly pay during that second period, namely £510.91.[21]Thirdly, by calculating the difference between the Claimant’s average weekly pay during those two periods (and thus the average increase in the Claimant’s weekly pay) and multiplying this figure by 90 to extrapolate the average increase over the relevant period. 3 of 5[22]In that latter respect the Respondent calculated that the difference between the Claimant’s average weekly pay during the two time periods in question was an increase of £65.09 per week, which extrapolated over the relevant period came to a total of £5,858.10.[23]However, while we have no issue with the Respondent’s methodology, its calculations contained an error, because it calculated the Claimant’s average weekly pay during the first period (the year immediately prior to his dismissal) as being £445.54, whereas in fact his average weekly pay during that first period was £471.54 (£24,520.15 divided by 52).[24]Accordingly, the difference between the Claimant’s average weekly pay during the two time periods in question was an increase of £39.37 (rather than £65.09).[25]Furthermore, when considering the amount the Claimant had earned from Royal Mail in the year immediately prior to the liability hearing account has to be taken of the fact that part of the increase was because the Claimant (along with other Royal Mail employees) received a pay rise that year of 4.2%. The total amount he would have received from Royal Mail during that second period without any such pay rise would have been £25,496.69 or an average weekly wage of £490.32.[26]Accordingly, the difference between the Claimant’s average weekly pay during the two time periods in question that appears to be attributable to the Claimant undertaking extra work for Royal Mail (rather than attributable to the pay rise) is an increase of £18.78 per week (£490.32 - £471.54), which extrapolated over the relevant period comes to a total of £1,690.20 (being 90. X £18.78).[27]If this figure is subtracted from the Claimant’s total loss between the date of his dismissal and the date of the remedy hearing of £8,706.60, this leaves a loss of £7,016.40.[28]The next question is whether the Claimant sufficiently mitigated his loss. We have concluded that he did.[30]It appears that he undertook some additional work at Royal Mail as a result of having more time to spare (albeit less than the Respondent’s calculations implied). Further, and more significantly, we accept that as far as the Claimant was concerned the importance of his work for the Respondent lay not in its remuneration but in the enjoyment and companionship of feeling part of the club on match days, and that since his dismissal he has been focussed on trying to get that role back, rather than replace his lost income. We consider that this was a reasonable attitude to take in the circumstances and indeed it was not suggested to the Claimant in cross examination that he should have looked for alternative work with other employers.[31]The final question is whether the Claimant’s compensation should be reduced by reason of contributory fault. We have concluded that it should not be.[33]While the Respondent submitted that the liability judgment records at paragraph 52 that the Claimant had accepted he was guilty of misconduct, in fact the 4 of 5 judgment records that the Claimant had accepted he was guilty of the conduct alleged (namely sending the photographs in question). Indeed, it has never been explained to us how his actions amounted to misconduct within the scope of the Respondent’s Disciplinary Policy.[34]Furthermore, looking at matters in the round, we do not consider it just and equitable to reduce the Claimant’s compensation. We have set out our criticisms of the Respondent in the liability judgment and there is no purpose in repeating them here. Suffice to say that since financial compensation is inadequate to fully redress the Claimant for what appears to be the needless loss of a much cherished and irreplaceable role we do not consider it would be just and equitable to reduce even that means of recompense for the wrong caused to him.[35]It follows that (leaving aside any question of compensation for loss of statutory rights and any small award for loss of pension contributions) the Claimant’s total financial loss between the date of dismissal and the date of the remedy hearing is £7,016.40.[36]However, pursuant to s.124(1ZA)(b) ERA, the total amount of compensation the Claimant can recover by way of compensatory award is capped at £6,036.16 (namely 52 x £116.08).[37]It follows that the Claimant is entitled to the following award in respect of his unfair dismissal:(i) A basic award of £1,799.24(ii) A compensatory award of £6,036.16(iii) Making a total monetary award of £7,835.40. Section 38 Employment Act 2002[38]Since, when he began these proceedings, the Claimant had not been given a written statement of employment particulars by the Respondent, he is entitled to an award of either two week or four weeks’ pay.[39]We have decided he is entitled to an award of four weeks’ pay. In this respect we note that at the date of his dismissal the Claimant had been employed by the Respondent for 12 years and that the Respondent is a large organisation with considerable resources at its disposal.[40]It therefore follows that the Claimant is entitled to a further award of £464.32. Approved By: