Employment Judge Allen sitting aloneDate 20 July 2021
JUDGMENT
[1]The claimant’s claim for unfair dismissal for an unfair reason is not well founded and is dismissed.[2]The claimant’s claim for procedurally unfair dismiss is well founded and succeeds. However, the claimant was 100% responsible for her own dismissal and her claim for compensation is dismissed.[3]Unpaid annual leave at the time of the effective date of termination the respondent concedes this was an oversight on its part and assured the court that it will be dealt with immediately. If neither party applies to reinstate this element of the claim within 14 days of receipt of this judgment it will stand as withdrawn by the claimant.[4]The claimant’s claim for wrongful dismissal is not well founded and is dismissed.
REASONS
[1]Claims and issues 1.1. In a claim form filed with the Employment Tribunal on 29 March 2019 and therefore within the statutory time limit the claimant, Ms Gloria Jordan, made a claim against her former employer Lodge Security Ltd of unfair dismissal (both substantially and procedurally), wrongful dismissal and failure to pay outstanding holiday pay at termination of employment.
FINDINGS
[2]Background 2.1. The claimant was employed as a store security officer by Lodge Security Ltd from 17 November 2015 until she was dismissed in 2019. The Effective Date of Termination is stated to be 21 January 2019. This was initially conveyed to her in a telephone call on that day and confirmed in a letter dated 22 January 2019. 2.2. The claimant was initially placed at the Primark store, The Glades (The Glades), Bromley and later moved to the New Look store also at The Glades. 2.3. Lodge Security Ltd employs, trains and then subcontracts security officers to a variety of businesses, in this instance retail outlets. At the time of her dismissal the claimant was seconded to the New Look store where she had been deployed for some months. 2.4. The offer of employment letter states the commencement date was 17 November 2015 this contradicts the claimant’s assertion in her ET1 that her employment ran from 23 November 2015 (Page 36 of the agreed bundle). 2.5. Since these events in 2019 witnesses have moved on and are no longer available consequently only the claimant and her sister Ms Esther Jordan gave evidence for the claimant and for the respondent; Mr Traore (the appeal decision manager) and Ms Newbould (HR Director not involved at all; her statement was compiled from the records of her colleagues).[3]Conduct 3.1. There are in fact 2 sets of conduct alleged; 3.1.1. Conduct defined as Gross Misconduct by the respondent on 16 January 2019; and 3.1.2. Conduct defined as Misconduct by the respondent between 19 December to 2018 – 11 January 2019. 3.2. Gross Misconduct on 16 January 2019 – 3.2.1. The events of 16 January 2019 are contained in the following documents; Statement of Chloe Laws (undated - page 67), Text from Esther Jordan to Gloria Jordan (17:55hrs - page 77), message from Becci Long to Daniel (19:19hrs - page 121), statements of the claimant dated 20 January 2019 (page 75) and dated 7 October 2019 (page 119) and oral evidence provided by the claimant and her sister today. 3.3. Having considered the evidence presented today I find: 3.3.1. Ms Jordan was working an afternoon shift due to finish at 18:30pm that day. 3.3.2. At 17:20pm the claimant told Ms Laws she was going on a break and left her two-way radio at the till. I accept that Ms Laws did not know the claimant intended to leave the store and would be gone for some time. The claimant’s shift would be over at 18:30pm so there was no reason to think this was anything more than a short staffroom break. Leaving her two-way radio behind is apparently contrary to her employer’s policies however no evidence was provided at the hearing to persuade me the claimant was ever made aware of this policy. 3.3.3. The claimant left The Glades and went to a burger outlet between 5- and 10-minutes' walk away. Consequently, it is reasonable to conclude the claimant knew she would be gone in excess of 20 minutes. 3.3.4. At 17:45pm there was a fire in the carpark of The Glades and the building was evacuated. It took several minutes for Ms Laws (store supervisor) to clear the store and lock both entrances. She could not find the claimant and searched the store for her. Colleagues told Ms Laws they thought they had seen the claimant leaving when the fire alarm went off. 3.3.5. I am satisfied those colleagues were mistaken and accept the claimant’s assertion that she was still in the burger outlet when Ms Laws was searching the store for her. 3.3.6. At 17:55pm the claimant’s sister (who also worked at The Glades) sent her a text asking if she had been evacuated. The claimant was still in the burger outlet now some 35 minutes after she started her break. The claimant returned to The Glades but couldn’t get back into the building. 3.3.7. The claimant was unable to find the evacuation assembly point and re-join her colleagues. I accept her evidence that she had never been told where it was. I have been provided with several sheets listing information covered at the claimant’s induction when she was first employed, this included fire procedures, disciplinary policy and procedures and many others. It is significant however that at her induction she was seconded to the Primark store consequently, in the absence of evidence to the contrary I conclude the information she received at induction was Primark specific. No evidence was presented that the evacuation assembly points for Primark and New Look were the same. 3.3.8. Sometime between 18:30pm and 19pm Ms Esther Jordan phoned the claimant and passed the phone to Ms Laws. The claimant and Ms Laws had a conversation. 3.4. Misconduct between 19 December to 2018 – 11 January 2019. 3.4.1. In December 2018 Management of New Look store, the Glades, began to have concerns about the claimant’s conduct when they discovered she was entitled to a total of 1 hour of breaks each day. Store management believed she may have been taking more than that. They also noticed that she was not arriving ‘in good time’ for her shifts and was ending her shifts before the store was cleared of customers thus leaving the pregnant store supervisor unsupported. 3.4.2. On 13 January 2019 the store manager raised her concerns with the claimant’s managers by email (pages 69-74 hearing bundle). CCTV had been reviewed and a summary of the claimant’s movements over 6 days between 19 December 2018 and 12 January 2019 prepared together with a handwritten note of the shifts she worked on 19, 20 and 21 December 2018; the store manager and the store deputy manager both completed statements. These documents were attached to the email.[4]Investigation 4.1. There was in fact no investigation. The disciplinary proceedings continued on the basis of the complaints and evidence presented by New Look store management.[5]Disciplinary Policy and Proceedings 5.1. The letter - The Respondent moved immediately to inviting the claimant to a disciplinary hearing by letter dated 17 January 2019 (page 57). The hearing was to be conducted by Shaun Welch (no longer with the respondent; has not made a statement and did not give evidence at today’s hearing). 5.2. The letter arrived no earlier than Friday 18 January 2019 on the claimant’s evidence and the hearing was to take place on Monday 21 January 2019. The company policy is to give 48 hours' notice of the hearing; being retail Saturdays and Sundays are normal working days. 5.3. The claimant asserts she had insufficient time to arrange to be accompanied or represented at the hearing. 5.4. Company handbook - Security Officers (page 48 agreed bundle): 5.4.1. Section 2.3.4. states: The company will notify the employee of the allegations against him or her and will invite the employee to a disciplinary hearing to discuss the matter. The company will provide sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case. This will include the provision of copies of written evidence, including witness statements, where appropriate. 48 hours' notice will be given of any disciplinary hearing and the employee will be advised of his/her right to be accompanied by a trade union representative or a work colleague at the hearing. 5.4.2. Section 2.3.5. states: A maximum of five working days postponement - in this instance, working days are Monday to Friday, regardless of an employee’s rostered shifts - will be permitted. A longer postponement period can only be authorised by the HR department. Failure to attend a rescheduled disciplinary hearing may result in the meeting being held in the employee’s absence. 5.5. 48 hours' notice is not in itself unreasonable the claimant was not therefore disadvantaged by the notice period in arranging representation. I have taken into account the claimant was not represented at the appeal hearing on 11 February some 21 days later. Had the claimant wanted to be represented at the appeal hearing she had ample time to arrange it. That she was represented at neither hearing leads me to conclude that was by choice. 5.6. I am not satisfied the letter was consistent with the Acas guidelines and/or section 2.3.4. of the respondent’s own handbook. 5.7. The allegations as set out in the letter were: 5.7.1. gross misconduct - dereliction of duties in particular leaving site and jeopardising peoples’ lives when a fire occurred. This is dealt with separately below 5.7.2. conduct in the workplace 5.7.3. Time keeping issues 5.7.4. Breach of trust and confidence 5.8. The allegation of Gross Misconduct is undated but since it occurred the day before the letter was sent the claimant could be in no doubt about what was to be discussed. Her prepared statement of 20 January 2019 (the day before the disciplinary hearing) addresses that allegation in detail. The other allegations contain no information on which the claimant could adequately prepare for the hearing. This is borne out by the fact that she does not address them at all in her prepared statement. 5.9. In addition, none of the evidence against the claimant was attached to the letter as required by the Company handbook which also stated that CCTV would be played at the disciplinary hearing. It wasn’t. 5.10. Many employers include a copy of the disciplinary policy with such letters. There is no evidence this respondent did so. Acas does not mandate the attachment of the policy document consequently its absence in this instance does not make the procedure unfair. 5.11. The Company handbook - Security Officers contains the discipline procedures, a list of examples of conduct the respondent would consider ‘Gross Misconduct’ deserving of instant dismissal without notice or payment in lieu of notice (page 53) including:• Act in a manner likely to bring discredit upon the company, the client or a fellow employee.• Behaviour which seriously damages the Company’s trust in the employee’s conduct and future good faith or which brings the Company’s or our client’s name into disrepute.• Serious or gross negligence, professional or otherwise, which includes leaving an assignment [position and/ or site] without prior permission, proper relief all sufficient grounds. 5.12. The hearing - the claimant tells me there was no note taker. In the absence of evidence to the contrary I accept that. Acas recommends but does not mandate the use of a note taker. In the circumstances the absence of a note taker does not undermine or invalidate the proceedings. 5.13. The notes of the hearing are signed by Mr Welch and I conclude they are his own (page 59). 5.14. It is unclear from the notes what detail was given to the claimant regarding the allegations of poor timekeeping and excessive breaks. They give a brief summary of the allegations and note the claimant produced her own pocket notebook where she had recorded the times she took breaks. 5.15. Mr Welch records that the respondent had CCTV showing the claimant’s movements. He doesn’t claim to have viewed it himself nor does he record that it was played during the hearing. The claimant asserts she asked for it to be played but was refused. In the absence of evidence to the contrary I accept that. I find that it is more likely than not Mr Welch had viewed the CCTV for himself on the grounds he had the DVDs in his possession as evidenced by his email to Ms Brown; HR Advisor (page 61). 5.16. I do find that Mr Welch acted reasonably in rejecting the claimant’s notebook entries of her comings and goings where they did not coincide with the CCTV evidence. Those entries were generated by the claimant herself and carry less weight than the time stamped CCTV recording. 5.17. The claimant produced her handwritten statement prepared the day before. She insisted she had told Chloe (Laws) that she was leaving the site. Mr Welch closed the meeting and told the claimant she would be informed of the outcome in due course. 5.18. The claimant made much of the fact her alleged failings as regards timekeeping and breaks should have been addressed at the appropriate review. She also made the point that she hadn’t had a review since 2016. There are two points to address here; the failure to hold regular reviews and the failure to address conduct at review:• In the absence of evidence to the contrary I accept the claimant’s assertion that she had no reviews between 2016 and 2019.• That her conduct was not raised at review is not the fault of the respondent who did not know of the complaints against the claimant until the week of the fire. In the circumstances I find that the claimant acted reasonably by not moving instantly to disciplinary proceedings on what was no more than a conduct matter. I heard evidence that such an allegation would be investigated before such a disciplinary decision was made. 5.19. The claimant also made much of the fact that CCTV from 16 January had not been shown to her and it would prove she had left the store at 17:20pm and not 17:45pm as some of her colleagues had said to Ms Laws. There was CCTV from that day and I find that it did indeed show the claimant left the store 25 minutes before the fire evacuation. That does not in my opinion help her case. 5.20. Mr Welch telephoned the claimant on 21 January 2019 and told her he had decided the complaints against her were upheld and she was dismissed with immediate effect, no notice and no payment in lieu of notice. 5.21. Hearing outcome letter - dated 22 January 2019 (page 58); states the decision was to terminate the contract as of 21 January 2019. The letter further states:• That having ‘viewed CCTV’ and reviewed the booking on system there were numerous discrepancies in the times the claimant signed on and the time she entered the store. There is no evidence the information from the booking on system was presented at the disciplinary hearing, it is never mentioned again in the bundle and I certainly was not provided a printout, summary or statement on what it contained. I have been provided with no explanation for its absence. Since it is stated in the letter as significant evidence, I find it was unfair not to provide it to the claimant before the hearing for her to adequately prepare or during the hearing for her to answer.• The claimant did not inform a manager she was leaving the site and that same manager re-entered the building to look for the claimant during the evacuation. It was only when CCTV was reviewed after the incident that it emerged the claimant had left the site. 5.22. I find that Mr Welch acted reasonably in rejecting the claimant’s assertion that she told Ms Laws she was leaving the site/store for her break given that it was she who searched the store for the claimant during the evacuation. Ms Laws would not have done that if the claimant had told her she was leaving for another meal break. I cannot rule out that this was deliberate since Ms Laws statement also asserted the claimant had already taken a meal break that day and she would almost certainly have challenged the claimant in those circumstances. 5.23. The letter also states that the implied contractual term of trust and confidence in the claimant had been breached and alerts the claimant to her right of appeal and how to exercise it.[6]Appeal Procedure 6.1. The claimant lodged her appeal by email on Saturday 26 January 2019 (page 60). She asserts if there were issues with her conduct they ought to have been dealt with at appraisals (I have dealt with this issue above); that her request to view CCTV at the hearing was refused and she had never been shown the evacuation assembly point (again dealt with above). 6.2. 29 January 2019 Mr Welch emailed Ms Brown, HR Advisor (page 61) attached the documentary evidence he had and stated he would send the DVDs in a couple of days. 6.3. 8 February 2019 the claimant was invited to an appeal hearing to be chaired by Mr Traore, Operations manager. The letter reminds the claimant of her right to be accompanied. 6.4. The claimant responded by email pointing out she had not seen the CCTV and requesting it. 6.5. An hour before the appeal Ms Brown sent Mr Traore the evidence relied upon at the disciplinary hearing (page 65 - 74). 6.6. The claimant and Mr Traore both assert he was unable to play the CCTV during the appeal. 6.7. The claimant was notified of the Appeal outcome by letter dated 19 February 2019 (page 66).[7]The Law 7.1. Section 98(1) &(2)Employment Rights Act 1996 (ERA) (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) not applicable, (b) relate to the conduct of the employee, (c) or (d) &(3) not applicable.(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.[8]British Home Stores Ltd v Burchell [1980] ICR 303, EAT, a three-fold test applies. The employer must show that: 8.1. it believed the employee guilty of misconduct 8.2. it had in mind reasonable grounds upon which to sustain that belief, and 8.3. at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances. 8.4. This means that the employer need not have conclusive direct proof of the employee’s misconduct — only a genuine and reasonable belief, reasonably tested.[9]This case of course pre-dates the 1996 Act but remains a useful expression of the test to be applied.[10]Polkey v AE Dayton Services Ltd [1987] UKHL 8, in a procedurally unfair dismissal, a Tribunal must consider whether the respondent could and would have dismissed the claimant fairly if it had followed a fair procedure. The leading case remains Software 2000 Limited v Andrews and others (EAT/0533/06) and the approach was set out by the then President, Elias P. The EAT explains that a Tribunal should look to reconstruct what might have been. However, it must not embark upon a ‘sea of speculation’. It must base its determination as to what might have been on the evidence before it.[11]Conclusions Issues 11.1 The relevant issues as set out in the respondent’s written submissions and which are in my opinion correct are as follows:• What was the reason for dismissal?• Did the Respondent hold a genuine belief in misconduct?• Were there reasonable grounds for the belief?• Was there a reasonable investigation and procedure?• Was the dismissal fair or unfair within the meaning of S.98 (4) ERA 1996?• Was the dismissal within the band of reasonable responses open to the employer?• Did the Claimant contribute to his/her own dismissal?• Is the Claimant entitled to the remedy he/she seeks?• Has the Claimant met his/her obligation to mitigate losses?[12]What was the reason for dismissal? 12.1. The primary reason for dismissal as set out in the letter of dismissal was gross misconduct, secondary to which was misconduct and breach to the implied contractual term of trust and confidence. 12.2. Applying S98 ERA subsections (1) & (2) conduct is a potentially fair reason for dismissal. Many contracts of employment go on to divide conduct into categories of Gross Misconduct and Misconduct. Many contracts list Gross Misconduct as a ground for summary or instant dismissal without notice and without pay in lieu of notice.[13]Did the Respondent hold a genuine belief in the claimant’s misconduct? 13.1. I am satisfied that the dismissal manager genuinely believed in the claimant’s misconduct supported as it was by a statement from Ms Chloe Laws together with CCTV which he viewed. Further the handbook specifically includes Serious or gross negligence, professional or otherwise, which includes leaving an assignment [position and/ or site] without prior permission, proper relief all sufficient grounds as an example of Gross Misconduct deserving of instant dismissal without notice or payment in lieu of notice.[14]Were there reasonable grounds for the belief? 14.1. I am satisfied there were reasonable grounds for that belief given it was supported by the claimant’s admissions that she left the store at 17:20pm and was still away at 17:55pm; some 35 minutes later. I am also satisfied that Mr Welch acted reasonably in rejecting the claimant’s assertion that she informed Ms Laws she intended to leave the site for her break. Ms Laws asserted the claimant told her she was taking a break and nothing else leading Ms Laws to conclude the break would be taken in the staff room. It is significant Ms Laws asserted the claimant had already taken a meal break that day. Consequently, when the alarm went off Ms Laws searched the store for the claimant believing she was still inside; something she would not have done if the claimant’s assertion she had told Ms Laws she was leaving the site was correct. Finally, the evidence of misconduct as to timekeeping and breaks is substantial evidence that Mr Welch was entitled to rely on in deciding the credibility of the claimant against Ms Laws.[15]Was there a reasonable investigation and procedure? 15.1. The allegation of Gross Misconduct was supported with a statement and CCTV; where there was sufficient information to warrant going directly to disciplinary hearing. Further investigation is not required in every case by the Acas code of conduct. 15.2. The Procedure was not fair. None of the evidence relied on was shared with the claimant and she did not therefore have adequate information with which to prepare in respect of the less serious allegations of misconduct as regards timekeeping and breaks. The allegation of gross misconduct was so recent in time the claimant was able to rely on her memory.[16]Was the dismissal fair or unfair within the meaning of S.98 (4) ERA 1996? Bearing in mind that the respondent is a business large enough to maintain an HR department with an HR Director and HR advisor the failings in the disciplinary proceedings make this a procedurally unfair dismissal.[17]Was the dismissal within the band of reasonable responses open to the employer? 17.1. Given that ‘Serious or gross negligence, professional or otherwise, which includes leaving an assignment [position and/ or site] without prior permission, proper relief or sufficient grounds’ is expressly stated by the respondent to be Gross Misconduct deserving of instant dismissal then I conclude the dismissal was within the range of responses open to a reasonable employer. That Ms Laws had put herself at risk to search for the claimant during an actual fire and not a drill had put the relationship between the respondent and its client at risk by undermining the essential trust between them.[18]Did the Claimant contribute to his/her own dismissal? 18.1. Without doubt. Notwithstanding the failings in the respondent’s disciplinary procedure, I am satisfied that had Ms Jordan been provided with copies of the New Look documents submitted to the respondent in support of their complaints and been shown the CCTV covering 16 January 2019 and the earlier events between 19 December 2018 and 12 January 2019 she would still have been dismissed. 18.2. I have concluded that Mr Welch acted reasonably in preferring Ms Laws account over that provided by the claimant on the issue that she did not inform Ms Laws she was intending to leave the site an issue clearly identified as Gross Misconduct in the handbook produced today. I am satisfied that not only did the claimant contribute to her dismissal but that she was 100% responsible for her dismissal and a fairly conducted procedure would not have changed that.[19]Is the Claimant entitled to the remedy he/she seeks?[20]Damages 20.1. In awarding what is just and equitable I must have regard to the loss sustained by the complainant.[21]The respondent continued to pay the claimant into March 2019. Any award I might make today must take account of those sums which must be deducted from the final award.[22]As stated at paragraph 19.2. above had the Respondent carried out a fair procedure the outcome would have been the same. This is relevant to the Basic Award at paragraph 24 and Compensatory Award at paragraph 26 below.[23]Basic award, S122(2) ERA provides that: where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. Given the conclusion at paragraph 18.2. above the claimant’s conduct was wholly responsible for her dismissal and the basic award is reduced by 100%.[24]S.207A of the Trade Union and Labour Relations Act 1992 allows for the compensatory award to be increased or reduced by up to 25 per cent for any failure by the employer or the employee to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures. Given that the respondent failed to provide any material to the claimant to enable her to adequately prepare for the disciplinary hearing the appropriate sum to be applied is a 25 per cent uplift on the award of any damages; however 25% of nil is nil.[25]Compensatory award, Following Polkey v AE Dayton Services Ltd [1987] UKHL 8, in a procedurally unfair dismissal, a Tribunal must consider whether the respondent could and would have dismissed the claimant fairly if it had followed a fair procedure. The leading case remains Software 2000 Limited v Andrews and others (EAT/0533/06) and the approach was set out by the then President, Elias P. The EAT explains that a Tribunal should look to reconstruct what might have been. However, it must not embark upon a ‘sea of speculation’. It must base its determination as to what might have been on the evidence before it.[26]Given the conclusion at paragraph 18.2 above the respondent could and would have dismissed the claimant fairly if it had followed a fair procedure and the compensatory award is accordingly reduced by 100%.[27]Whilst the claimant was procedurally unfairly dismissed, she is 100% responsible for her own dismissal and is not entitled to compensation.[28]Has the Claimant met his/her obligation to mitigate losses? This question does not arise since the claimant is not entitled to compensation.[29]Wrongful dismissal. The conduct for which the claimant was dismissed is specifically identified in the employee handbook as gross misconduct deserving of summary dismissal with neither notice or payment in lieu of notice. The claimant’s claim for payment in lieu of notice is not well founded and dismissed.[30]If an issue is not specifically addressed above it is because I concluded it was not relevant to the decision I must make in considering this case in a Full Merits Hearing.