Mr C Rogers v XPO Transport Solutions UK Ltd: 3314971/2023
JUDGMENT
[1]The claimant’s claim for unfair dismissal is dismissed. JUDGMENT having been sent to the parties on 15 January 2025 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:REASONS
[1]The claimant was employed by the respondent as an HGV Class 1 Driver. By a claim form presented on 19 December 2023, following a period of early conciliation from 10 November to 14 December 2023, he presents a claim of unfair dismissal. The respondent defends the claim.The issues
[2]What was the reason or, if more than one, the principal reason for dismissal?[3]Did the respondent genuinely believe in the reason and was that reason based on reasonable grounds following a reasonable investigation?[4]Was the decision to dismiss fair in all the circumstances and, in particular, was it within the band of reasonable responses of a reasonable employer? The respondent’s case is that the claimant was dismissed for gross misconduct.The law
[5]Section 98 of the Employment Rights Act 1996 provides as follows:- 98 General.(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it— … (b) Relates to the conduct of the employee. … (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.”[6]As set out in British Homes Stores v Burchell the respondent has to show that it genuinely believed in the reason for dismissal and that the belief was based on reasonable grounds following a reasonable investigation. The decision to dismiss must fall within the band of reasonable responses of a reasonable employer. It is not for the tribunal to substitute its views for the views of the employer. Polkey and contribution may apply. Mr Malik cited two cases to me on contribution which I do not set out here.The evidence
[7]I had a hearing bundle running to 276 pages. The claimant provided a further two emails of a raffle he ran which I have not viewed as they are clearly irrelevant. In my judgment, an office raffle is an entirely different proposition to obtaining milk on a commercial basis. He also provided screen shots of managers who subscribed to his raffle. I was provided with a chronology by Mr Malik.[8]I had witness statements and heard evidence from the following:(i) Ms Kelly Cumberbatch, Shift Manager for the respondent at Hatfield, who conducted the investigation.(ii) Ms Loredana Ionita, Compliance Manager for the respondent at Hatfield, who dismissed the claimant.(iii) Ms Laura Weaver, Transport Manager for the respondent at Hatfield, who heard the claimant’s appeal.(iv) The claimant. The claimant has not prepared a witness statement for this hearing but adopted the contents of his claim form as his statement.(v) Mr James Simpson, a colleague of the claimant and a union representative[9]I also had some email “statements” from Mr Bruno Campos, Mr Matt Hockley and Mr Dave McElligot.[10]I was shown two video clips from 22 September 2023.The facts
[11]The claimant was employed by the respondent as an HGV Class 1 Driver based at the Hatfield site of the respondent’s customer, Arla Foods Ltd. The respondent’s drivers collected bottled milk from Arla’s production sites and transported it to Hatfield to be stored. From Hatfield the respondent’s drivers would then deliver milk to large retail outlets.[12]The respondent has a disciplinary policy. This provided for suspension, investigation, escalation to formal disciplinary action, a disciplinary hearing and an appeal. It recites:- “In cases of gross misconduct, serious offences or the accumulation of previous warnings, dismissal with or without notice may be warranted.” And under “Gross misconduct offences” “Gross misconduct refers to any breach of the Company’s rules which is so serious that it irrevocably destroys the relationship of trust between the Company and the colleague.”[13]A non-exhaustive list of offences which, if proved, was likely to result in dismissal without notice included:- “● To carry out private trading on company premises without permission from a senior manager.”[14]In addition, the respondent has a “Code of Business Ethics”. This provides: “Consequences of a Violation You agree to comply with the Code, all company policies and applicable laws, rules and regulations. Failure to comply with the Code, company policies or applicable laws, rules or regulations carries consequences, including possible termination of employment, or other disciplinary actions.” And “Honest and Accurate Information XPO deals fairly and in good faith with our customers, suppliers, competitors, and employees. You may not take advantage of anyone through unfair dealing practices.” And “Our Responsibilities We all share a responsibility to: Act with integrity in all of our business dealings, large and small.”[15]At the Hatfield site Arla had a canteen and a staff shop. The staff shop is a chiller cabinet where butter, cheese and other dairy products are displayed for sale to staff. I was told that items damaged in the warehouse or not able to be distributed would be placed in the shop. The items were very cheap. Anything at 250g was priced at .35p or three for £1 and 400g was 50p. Heavier items cost more. Understandably the shop appears to have been very popular.[16]The chiller cabinet had a sign next to it. It states: “STAFF SHOP ONLY 4 ITEMS PER PERSON ONCE A DAY.”[17]Arla permitted the respondent’s employees to use the canteen and the staff shop.[18]The claimant asserted on a number of occasions that there was no policy or rule that he could only purchase four items a day. I reject that evidence. It is clear to me that the claimant knew perfectly well that he was only supposed to buy four items per day. The sign could not be clearer. In his claim form he references asking to get “extra items”. In the investigatory meeting on 5 October 2023 he was asked “Why take this amount when you know it is four max” and his reply was “Kelly makes cakes at home”. It is noticeable that he did not dispute the four item rule. In the investigation meeting of 10 October 2023 and 17 October 2023 he refers to being cheeky when asking the lady on the till of he could take more. On 21 September 2023 he bought four items and got three colleagues to buy four items each for him using his wife’s debit card, and a fourth colleague using his own card to purchase items which the claimant reimbursed him for. That was all plainly because he knew of the four item rule.[19]In late September 2023, Kelly Cumberbatch was approached by Phil Gibbons (QHSE) Manager of Arla. He told her he had some CCTV footage that he thought she would be interested in. Arla was investigating a member of staff in the canteen for a drug related issue and, on viewing the CCTV footage, by chance, footage of the claimant on 21 and 22 September 2023 came to light and was of interest.[20]The footage from 21 September has not been shown to me but I had stills from it. I have viewed two clips from 22 September 2023. The first clip, timed at about 21.13, shows the claimant and a colleague at the chiller cabinet. The claimant takes four tubs of butter to the till and pays which is recorded at 21.14. He then returns to the chiller cabinet. He takes out eight more tubs of butter and the colleague takes out three tubs. They put them in a bag and leave[21]The second clip shows the claimant returning at about 21.20. He is with two other colleagues. By his own account he takes 40 foils of butter from the chiller cabinet and puts them in a bag. He and two colleagues then go to the till. They are there for some time and it is not possible to see with any clarity whether or not payment is made and, if so, by whom.[22]The footage from 21 September shows the claimant and four colleagues each buying four items. The claimant can be seen handing his card to three colleagues to pay and they hand the items to him. Another colleague used his own card, and the claimant reimbursed him later. The claimant eventually admitted that this is what went on.[23]Due to concerns about what was seen to be going on the claimant and all other colleagues were suspended and an investigation begun. The claimant was suspended on 3 October 2023. The suspension letter states: 1. “This letter is confirmation of your suspension from your duties – Alleged theft from staff shop in Arla canteen.”[24]The respondent clearly took the matter very seriously, not least because it potentially impacted on its relationship with Arla. Loredana Ionita gave evidence that in total the investigation resulted in 81 days or 848 hours of employee suspension at a direct cost of £17,000 plus management time spent on the investigation.[25]The claimant was invited to an investigation meeting on 5 October 2023. He was informed he could be accompanied. He was informed that the purpose of the meeting was to discuss: “● Alleged theft from the Arla canteen staff shop”.[26]The investigation meeting was held on 5 October by Kelly Cumberbatch. The claimant was played the CCTV footage and Kelly Cumberbatch states that he appeared quite surprised. Kelly Cumberbatch had a till log. It contains times and the transactions are numbered sequentially. Whether the times on the till and the CCTV are accurate is not known. It was put to the claimant that at the times he got the butter there were no transactions on the till. He was asked to obtain bank statements to show he had paid for the butter.[27]A second investigation meeting was held by Kelly Cumberbatch on 10 October 2023. The claimant had obtained bank transaction records that showed three transactions to CH & CO (the staff shop) on his wife’s debit card on 22 September 2023. One for £4 was timed at 20.16.56 and two £2 ones untimed. If the order on the bank statement is correct, the order of the payments was £2, £2 and then £4 but since they are all recorded as clearing on 25 September 2023 that may not be so. The transaction record shows the £4 clearing on 23 September and the two £2 clearing on 25 September 2023.[28]The claimant’s tachograph record showed that he was on the road at 20.16. Whether the bank’s timer was one hour out is not known but the till log does record a £4 transaction at 21.16.[29]In the 10 October meeting it was suggested that the four tubs would cost £1.40 and that 12 tubs would be £4.20, and that no payment matched up to 15 tubs. The claimant stated that when he first went to the till on 22 September with four tubs he paid £2, then asked if he could have the rest and then tapped the card a second time for £2.[30]The claimant told me that the tubs were .35p each or three for £1. Paying £2 for 4 would be 50p each.[31]For the 15 the claimant took the price would be: At .35p each: £5.25 At 3 for £1: £5 At 50p each £7.50[32]The claimant’s case is he did not look at how much the lady on the till had charged him and just tapped his card twice.[33]If the claimant tapped his card twice for £2 then he clearly underpaid whatever the calculation.[34]Apart from the price issue, however, the problem with the claimant’s explanation is that if that was correct one would expect the till log to show that the two £2 transactions close in time. There is a £2 transaction timed at 21.10 and no other transaction until 21.26 which is after the £4 one timed at 21.16.[35]At the investigation meeting on 10 October the claimant went on to deal with the second purchase. He said that the lady on the till could not work out how much 40 foils at .35p would cost and that he and Matt McElligot worked it out and told her £14. It is the claimant’s case that she in error charged £4, and he paid without looking.[36]When the investigation dealt with 21 September, the claimant was asked if anyone got any more for him and he replied “No”. That was clearly a lie – possibly to protect others. When he was shown the CCTV he admitted that others had bought items for him.[37]A third investigation meeting was held by Kelly Cumberbatch on 17 October 2023. The claimant said he did not realise £4 had been charged for the foils and offered to pay the £10 difference, The following is recorded in the meeting notes: “KC: Before we wrap up, in total there was 77 items of butter in 2 days, I have to ask what could you possibly do with 77 items of butter. CR: Kelly bakes cakes since her mum died, her dad has a café and every Sunday we drive to Peterborough services and give him the butter, that way she sees her dad as well as he lives in Grantham. VH [Victoria Hoskins: Note Taker]: Can I ask a question Kelly please, if you see him every Sunday at Peterborough to give him butter, are you buying this amount every week. CR: We see him anyway just to see him, if I have butter then I’ll give it to him. KC: Does he pay for this butter. CR: Yes he gives Kelly the money and she puts it into her bank”[38]At the end of that meeting Kelly Cumberbatch summarised the position as follows:- “KC: To summarise my findings, From 21 September you issued 3 people your card to buy butter for you, you asked one person to buy using their card which you paid back using transfer, with the above situation I feel you put these people in a situation that could have been avoided by you, I by no means feel you pressured them but you still asked them in my view knowing it is not allowed, breaking company trust and the COBE. As per 22 Sept, we agreed you took 42 foils of butter in a bag to the till, we still haven’t managed to show you paid in full for these, I do appreciate the comments you made with the £10, you put two drivers with you that you put in a situation that has implicated them, they have both not adhered to the COBE as they did not report anything to management. Also in this evening you went into canteen with Dave McElligot and took 4 tubs of butter to till which you claim you paid for, you asked if you could take the remainder and again there was no proof of full payment for these, all of the above I class as gross misconduct, as you have also implicated a number of people in this, 2 of which have already had a DP hearing and received a warning on their record which will stay for a year. In view of all of this it will be forwarded to DP hearing, for the time being you will remain on suspension on full pay, we aim to get a date for your DP as soon as possible for you ok.”[39]The claimant was sent a letter by email dated 18 October 2023 inviting him to a disciplinary meeting on 20 October 2023. He was provided with all relevant documents. The allegation was: “● Alleged theft from the Arla canteen shop”[40]The disciplinary meeting was held by Loredana Ionita on 20 October 2023. The claimant was accompanied by a union representative. The claimant maintained that he did not steal anything and that it was not his fault that the lady undercharged him. He claimed he did not know how many items he could buy blaming dyslexia. He emphasised that others bought more than four items. He added as follows: “CR: Yeah there were so many, other people do it, its not my fault she did not charge me, this has been going on for years, you can’t do me for alleged theft and there’s nothing in the policy so you can’t do me, I’ll take it straight to the court.”[41]Loredana Ionita decided to dismiss the claimant for gross misconduct. She said in evidence that she believed the claimant was aware that he had been undercharged. She found that 42 items had not been paid for. She said that the claimant had implicated colleagues in acting outside the rules and that the relationship of trust between the claimant and the respondent had broken down irrevocably. She considered that supplying the claimant’s father in law was private trading.[42]On 23 October the claimant was sent the outcome letter dismissing him. The letter asserts that the tubs cost 50p which could be wrong (but not a point the claimant raised on appeal). Even if wrong, the claimant still underpaid.[43]The dismissal letter concludes:- “Having fully considered the evidence that was presented at the investigation and disciplinary hearing and your responses to the questions, I am satisfied that the facts of the case are as follows: ● Failed to comply with the Code of Business Ethics referring to total integrity and business dealings and taking advantage of our customer ARLA through unfair dealing practices, namely ignoring their rules in regard to daily allowance from the OPEN SHOP. You were entitled to have 4 items/day, but the CCTV footage proves you had 20 products on 21 September 2023 + 57 products on 22 September 2023. ● Irrevocably destroying the relationship of trust between the Company and yourself, our customer ARLA and yourself, and lastly between yourself and all the colleagues involved in the case. ● Reasonable belief that there was a failure to pay in full for the items taken from the canteen on 22 September 2023. ● Carrying out private trading on company premises with out permission, namely buying Arla products from the canteen or from other XPO colleagues and reselling them on a regular basis. Your actions are classed as gross misconduct, being also a fundamental breach of mutual trust and confidence, therefore my decision is to terminate your employment with immediate effect.[44]The claimant appealed on 24 October 2023 and set out the grounds in an email dated 5 November 2023. In that email he states:- “On 22 September 2023, I entered the canteen and purchased x 4 tubs of butter. The lady behind the counter charged me £2, (I did not know how much she charged at the time as I paid with a card or phone and did not look). I told her there were 11 more in the fridge and asked her if I could purchase the rest, She said I could, and it wasn’t a problem. She told me to take them on my way out and come back and pay for them afterwards. So, I went to the car, put them in there and then came back in to pay. When I came back in, I saw 40 (not 42 as stated) foils of butter in the fridge. I approached the counter to pay for the x 11 butter tubs I took and paid. At this point, I was not aware that she didn’t charge me correctly. This is where she charged me just £2. This is a mistake on her part, not mine, as I have no control over what she charges, and I was unaware of what was charged. I asked her if I could purchase the 40 butter foils the fridge, and she said “yes”. So I put them in a bag, took them to the counter, and she charged me.”[45]That account is at variance with the account the claimant gave me in this hearing that he tapped £2 twice on his first visit to the till on 22 September 2023.[46]The appeal was heard by Laura Weaver on 6 November 2023. In cross examination the claimant asked her if she thought he had stolen the butter and she said “yes” she did believe he stole. She concluded that the decision to dismiss was justified.[47]During the course of the investigation the claimant alleged that Kelly Cumberbatch had bought items and sent them to a colleague who did not have access to the staff shop and that Loredana Ionita had also sent items to a colleague. Both were investigated by the respondent and no actions taken. I find there was no inconsistent treatment as the nature of what they had done was very significantly different to that which the claimant was alleged to have done.Conclusions
[48]My role is not to decide whether or not the claimant committed theft on 22 September 2023, and I do not do so.[49]I find that the reason for dismissal was gross misconduct.[50]I find that the respondent conducted a reasonable investigation, and that the dismissal was procedurally fair.[51]I find that the respondent had reasonable grounds to conclude that the claimant had committed gross misconduct. The claimant had clearly been abusing the four item rule to the commercial benefit of his father-in-law. To characterise this as a trading may be a bit of an exaggeration but he was working the system and being reimbursed. I do find that he was abusing the system and knew it.[52]I find that the respondent took the issue very seriously suspending six or seven colleagues and dismissing one other for theft (which he admitted). It is clear to me that the respondent acted thoroughly due to the involvement of Arla and in order to maintain the commercial relationship on a good level.[53]I find that there were grounds upon which the respondent could conclude that the claimant knew he had been undercharged, The claimant did not in fact pay the correct price on all three occasions on 22 September 2023. Further, there are inconsistencies in his evidence concerning when he paid the second £2. I find that the claimant’s actions amounted to a lack of integrity and were a breach of the Code of Business Ethics.[54]I find that the decision to dismiss was within the range of reasonable responses of a reasonable employer.[55]I find that in all the circumstance the respondent acted reasonably in treating the reason for dismissal as sufficient and the dismissal was fair on the merits. Approved by: