Mr H Dumanis v Diageo plc: 3322452/2016
JUDGMENT
[1]The claimant’s direct age discrimination claim is not well founded and is dismissed.[2]The claimant’s direct race discrimination claim is not well founded and is dismissed.[3]The claimant’s unfair dismissal claim is not well founded and is dismissed.[4]The respondent’s counterclaim has been proved and the claimant is ordered to pay the respondent the sum of £1,155.16.REASONS
[1]By a claim form presented to the tribunal on 27 January 2016, the claimant brought claims of unfair dismissal, direct race and age discrimination, breach of contract and unauthorised deductions from wages.[2]In the response, presented to the tribunal on 7 March 2016, it is averred by the respondent that the claimant was dismissed for conduct and that he had not been discriminated against. It denied that it had made any unauthorised deductions from his wages and asserted that he was fairly dismissed. It asserted that the claimant was overpaid his wages and it intended to reclaim the sum of the overpayment. As a consequence an employer counterclaim was issued against the claimant.The issues
[3]At a preliminary hearing held on 4 April 2015 the claimant’s claims and issues were clarified. They are:[4]Unfair dismissal claim4.1 What was the reason for the dismissal? The respondent asserts that it was a reason related to conduct which is a potentially fair reason for section 98(2) Employment Rights Act 1996. It must prove that it had a genuine belief in the misconduct and that this was the reason for dismissal. The conduct may be summarised as:4.1.1 failure to make sufficient effort to perform his job to a satisfactory standard;4.1.2 insubordination;4.1.3 failure to attend the original disciplinary hearing.4.2 Did the respondent hold that belief in the claimant’s misconduct on reasonable grounds? The burden of proof is neutral here but it helps to know the claimant’s challenges to the fairness of the dismissal in advance and they are identified as follows:4.2.1 the evidence of failure to make sufficient effort to perform was contradicted by what the claimant’s manager said about his performance;4.2.2 with regard to the allegation of insubordination the claimant says that the PIPs were a tool for harassment;4.2.3 the claimant did not fail to attend the hearing, but he was late because the respondent did not follow its own procedures in sending him the invitation;4.2.4 the respondent did not allow the claimant to bring his own union representation;4.2.5 the respondent was biased against him and its managers did not take an objective view of his case.4.3 On the same burden of proof, did the respondent carry out as much investigation was reasonable in all the circumstances?4.4 Was the decision to dismiss a fair sanction, that is, was it within the reasonable range of responses for a reasonable employer?4.5 If the dismissal was unfair, did the claimant contribute to the dismissal by culpable conduct in that he was guilty of the misconduct alleged? This requires the respondent to prove, on the balance of probabilities, that the claimant actually committed the misconduct alleged.4.6 Does the respondent prove that there was a percentage chance of a fair dismissal in any event? If so, what is the percentage and when would dismissal have taken place?[5]Section 13: Direct discrimination on grounds of race and/or age.5.1 The claimant is of white, of Greek nationality and origin.5.2 Has the respondent subjected the claimant to the following treatment falling within section 39 Equality Act, namely:5.2.1 the claimant applied several times for a position but was not offered the job;5.2.2 in the summer of 2015, the claimant’s colleague Desmond Horscroft was promoted to trainer, but the claimant was not offered that role;5.2.3 throughout his employment the claimant was not given the chance for training and development, despite his continuous requests;5.2.4 and/or dismissing the claimant.5.3 Has the respondent treated the claimant as alleged less favourably than it treated or would have treated the comparators? The claimant relies on the following comparators (issue 5.2.1 Karen Smith; issue 5.2.2, Desmond Horscroft) and/or hypothetical comparators.5.4 If so, has the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic? In particular the claimant complained in writing about his lack of opportunities. Katie Simpson dealt with the grievance and a manager underwent training as a consequence.5.5 If so, what is the respondent’s explanation? Does it prove a non-discriminatory reason for any proven treatment? Age only:5.6 And/or does the respondent show that the treatment was a proportionate means of achieving a legitimate aim?[6]Are the discrimination claims in time?6.1 The claim form was presented on 27 January 2016, ACAS received notification on 27 January 2016 (day A) and an EC certificate was sent on 27 January 2016 (day B). Accordingly any act or omission which took place before 28 October 2015 is potentially out of time, so that the tribunal may not have jurisdiction.6.2 Does the claimant prove that there was conduct extending over a period which is to be treated as done at the end of the period? Is such conduct accordingly in time?6.3 Was any complaint presented within such other period as the employment Tribunal considers just and equitable?[7]Breach of contract (notice) and unlawful deductions, including employer’s contract claim.7.1 The respondent says that it dismissed the claimant with pay in lieu of notice.7.2 The respondent claims to be entitled to set off against that sum paid in lieu of notice an overpayment of 4 months’ salary made in July 2015.7.3 The respondent says that the claimant agreed in writing that the claimant would repay the sum overpaid in installments.7.4 Was the respondent, by written agreement with the claimant, entitled to set off the sums alleged to be overpaid against his pay in lieu of notice?7.5 Does the tribunal have jurisdiction to order the claimant to pay to the respondent any outstanding sums still owing to the respondent? If so, how much is owed?7.6 The claimant says that the respondent has removed the sum of £2,277.49 from his bank account without his consent. Unlawful deductions/breach of contract 5 May 2001 to 1 April 2012? (Issues 7.7, 7.8 7.10, 7.11 and 7.12 for Preliminary Hearing. The calculation of any loss may be dealt with at the Full Hearing.)7.7 The claimant says that he was in fact an employee between 1 April 2001 and 1 April 2012 although he was paid on a self employed basis.7.8 Was the claimant in fact an employee during that period?7.9 If so, were there unauthorised deductions from his wages in that he was not paid pension, medical care, holidays and the costs of parking?7.10 Was the respondent in breach of the claimant’s contract in these respects and was the claim outstanding on the termination of his employment?7.11 If the claim is one for unauthorised deductions from wages, was it brought before the end of the period of three months beginning with the last deduction?7.12 If not, was it not reasonably practicable for it to be brought within that period of three months or was it brought within such period as the tribunal thinks reasonable?[8]Remedies8.1 If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy.8.2 There may fall to be considered reinstatement, re-engagement, a declaration in respect of any proven unlawful discrimination, recommendations and/or compensation for loss of earnings, injury to feelings, breach of contract and/or the award of interest.[9]At a preliminary hearing held on 20 June 2016, Employment Judge Henry ruled that the claimant was employed by the respondent from 1 April 2001 to when he became an employee on 31 April 2012. This meant that the claimant was continuously employed from 1 April 2001 to his dismissal. The employment judge also ruled that the claimant had not suffered unauthorised deductions from his wages, nor was the respondent in breach of contract in respect of payments to the claimant for pension, medical care, holidays and the cost of parking. The costs of the hearing were reserved to the conclusion of the full merits hearing.[10]It follows from the above judgment that the only claims to be considered by this tribunal were direct, race and age discrimination, unfair dismissal and the respondent’s counterclaim.The evidence
[11]The tribunal heard evidence from the claimant who invited the tribunal to consider the written statement dated 10 May 2016 from Mr Safwan Kaouk.[12]On behalf of the respondent evidence was given by: Mr Zenon Grobler, employee relations specialist; Mr Stewart Derrick, employee relations support; Ms Irina Chirilescu, brand ambassador and capability manager; Mr Russel Snow, retail marketing manager; Ms Shalinee Basak, human resources business partner, global travel and middle east; Mr Stuart Cook, head of CP&A (off-trade); and Mr Graham Penter, consumer pricing, promotions and www director.[13]In addition to the oral evidence the parties adduced bundles of documents; two joint bundles and a separate bundle entitled “The claimant’s bundle”. During the course of the hearing further documents were adduced by both parties. These documents shall be referred to in our judgment. Claimant’s application for a postponement[14]On 13 July 2016, the claimant applied for a postponement of the final hearing stating a breakdown in communication with is lawyer who had failed to apply for an adjournment on his behalf. He stated that the joint bundle had not been agreed; his lawyer did not receive documents to be considered for inclusion in the joint bundle; and that he would like (that is the claimant) to have more time to negotiate a settlement.[15]On 14 July 2016, Mr Daniel Smith, employment litigator at DAS Law, informed the tribunal in writing that he was no longer acting for the claimant.[16]On 18 July 2016, the respondent’s legal representatives wrote to the tribunal objecting to the claimant’s request for a postponement stating that the claimant had had ample time to seek legal advice. He had advised the respondent on numerous occasions that he would be instructing solicitors. At the preliminary hearing on 20 June 2016, he stated to the employment judge that he was in the process of instructing solicitors and on 4 April 2016 at the earlier preliminary hearing, he objected to the respondent’s request that the case be listed for hearing in September as he wanted an earlier hearing date. They asserted that the claimant had unreasonably delayed in requesting a postponement and that the respondent had incurred considerable time and cost in preparing for the hearing. He had been in full possession of all the documents following disclosure. They asked that the case should remain as listed.[17]Employment Judge Henry on 19 July 2016 refused the claimant’s application for a postponement. The claimant renewed his application the following day stating that he was going to contest the respondent’s contract claim and requested that the case again be postponed as he had hired a new lawyer, Mr Chysanthos Potopapas, who needed time to assess the case and to draft the claimant’s witness statement. The claimant asserted that Mr Smith, he previous legal representative, had acted unlawfully in that he agreed the respondent’s witness statements. This was without reference to the claimant. Further, he had failed to provide the claimant with the name of the barrister who would be assessing his case. As Mr Potopapas had agreed verbally to represent him the proximity of the hearing did not afford him much time to consider the documents and to take instructions.[18]On 21 July 2016 the respondent’s legal representatives objected to the claimant’s further request for a postponement. They set out the chronology of events and stated that the claimant was contemplating appointing a solicitor as early as 20 May 2016. The respondent would incur considerable costs should the application be granted.[19]On 22 July 2016, the tribunal informed the parties that the claimant’s application for a postponement was refused and that the case would commence on 25 July at 10am.[20]On 25 July the claimant, before us, renewed his application for a postponement. He stated that his first solicitor did not want to act for him and had lost the insurance documents to cover the legal work in his case. He agreed with his first lawyer that it was best to find another lawyer to represent him. Mr Daniel Smith came on record 6 July 2016 but apparently did not act under the claimant’s instructions and was sacked. He had never met Mr Smith, their dealings were over the telephone.[21]He stated that on or around 20 July 2016 Mr Potopapas agreed verbally to assess his case once he received all the documents and would draft a statement on behalf of the claimant. Bearing that in mind, should the hearing proceed he, that is the claimant, would be denied legal representation and Mr Potopapas would want time to consider the documents and to properly advise the claimant as well as to consider whether he should be legally represented. The claimant suggested that the hearing should be postponed and re-listed in September 2016.[22]Ms Quigley, counsel on behalf of the respondent, made submissions in line with the written submissions of her instructing solicitors sent to the tribunal opposing the claimant’s application for a postponement.[23]After considering the claimant’s application and the respondent’s response to it, we ruled that Mr Potopapas was now the claimant’s third lawyer and that Mr Smith would not have come on record without having instructions from the claimant. There was nothing in writing from the third lawyer stating that he was prepared to represent the claimant subject to reviewing the documents. Further, there was no certainty that he would be in a position to represent the claimant. The claimant had prepared his own witness statement and was familiar with the documents in the case. He also attended the two preliminary hearings without legal representation. Moreover, employment tribunals are experienced in assisting unrepresented parties. With all this in mind the tribunal ruled that the claimant’s application should be refused. We gave him the rest of the day to read the witness statements served on him by the respondent that morning. The claimant did not object to this course of action. Accordingly the tribunal stayed proceedings to commence the following morning.[24]The following morning the claimant produced medical documents in support of a further application for a postponement. The medical records from Northwick Park Urgent Care dated 25 July 2016 at 1.19pm stated that the claimant was suffering from hypertension as his lawyer had let him down on that day. He stated that he was under a lot of stress due to his employment case and that his lawyer did not turn up at court to represent him. It was noted that he was feeling low and felt as if he was at risk of dying but was not suicidal. There was no evidence of self-harm and that he wanted a letter stating that due to his health problems his case should be adjourned.[25]In a letter from Dr I Rashid, locum GP, dated 25 July 2016, Dr Rashid stated the following: “To whom it may concern This patient has a history of hypertension and LBBB. Please kindly see the attached letter from London cardiovascular clinic dated 22 June 2015, for further details. He tells me that he is currently under a lot of stress which has resulted in his current raised BP. Today his BP in surgery was 160/94. He feels that attending court for the next two weeks would affect his health and wellbeing and is keen to have his case adjourned. I would be grateful for your understanding in this matter.”[26]The letter from London Cardiovascular Clinic dated 22 June 2015, states that the claimant suffers from high blood pressure and was due to restart his medication on Doxazosin.[27]In a further report dated 19 February 2014 by Dr F Jadoon, it states that the claimant was suffering from left knee pain which was gradually getting worse. On examination he was tender over the medial edge of the left patella but the rest of the examination was unremarkable.[28]We found that the medical documents dated 25 July 2016 do not state that the claimant was unfit to attend an employment tribunal hearing, nor was he unable to represent himself. Dr Rashid simply repeated what the claimant had said and how the claimant felt about attending the tribunal. In the absence of any clear medical evidence that the claimant was unfit to attend and conduct his case before this tribunal, his application was again rejected. After giving our ruling the claimant stated that he was content to proceed.Findings of fact
[29]After considering the evidence the tribunal made the following material findings of fact.[30]The respondent produces and sells alcoholic beverages at outlets in the United Kingdom and worldwide. It employs, in total, around 36,000 people.[31]The claimant has been continuously employed by the respondent from 1 April 2001. On 1 April 2012 he was contracted to work as a brand ambassador and was issued with a contract of employment. Previously he had been considered by the respondent as a self-employed person but following the judgment of Employment Judge Henry, in law, he has been continuously employed by the respondent since he commenced work on a self-employed basis. At all material times he was based at Heathrow Airport.[32]In his contract of employment, paragraph 22, under deductions from salary, it states the following: “By signing the copy of this letter you agree that the company may deduct monies owed to it by you, directly from your salary. Examples of circumstances where this may apply include (without limitation):• Genuine errors in payroll transactions such as overpayments• Recovery of cash advances• Deductions to payback loans (season ticket loans)• Deductions for holiday taken in excess of accrued entitlement• Recovery of personal expenses on company credit cards”[33]In its disciplinary policy under dismissal it states: “Prior to dismissing an employee, managers considering dismissals must consult the relevant HR director. Where this is not possible, at the point of consideration, the employee should be suspended on full pay until the appropriate consultation has taken place.”[34]In relation to alternative sanctions other than dismissal, the policy provides: “The company may at its absolute discretion and depending on individual circumstances impose further or alternative sanctions, such as transferred to another role, demotion, loss of seniority, loss of increment or suspension without pay.”[35]The respondent has a right to impose following a disciplinary hearing, sanctions such as no further action/coaching for improvement; verbal warning; written warning; and final written warning (pages 76-84 of the joint bundle).[36]The duty free liquor store where the claimant worked in terminals 2 and 3 are owned by a company called World Duty Free Group. They have their own staff and operate the cash terminals. Also working at the World Duty Free stores are brand ambassadors supplied by a company called Blackjack, in effect a recruitment agency. The respondent also provides brand ambassadors working at WDFG’s liquor store at the airport. The claimant was employed as a brand ambassador. Brand ambassadors sell the respondent’s products directly to customers and they seek to enhance sales of the respondent’s products in the stores generally by ensuring, for example, that the products are clean and correctly displayed. They are also required to establish good working relationships with WDFG staff and Blackjack staff. The claimant worked two days on, two days off. On the two days he was not working they would be filled by brand ambassadors from the respondent and/or Blackjack.[37]The respondent has a system of working applied to its staff whereby at the beginning of the year an employee would complete what is described as a P4G which is a Partners for Growth document. This, in conjunction with the employee’s line manager, is used to review the previous year’s employee’s performance and set objectives for the coming year. It is reviewed after the six months stage and at the end of the year. In the claimant’s case the P4G would include a number of objectives, such as product sales; growing the business; “grow our people”; “grow our relationships and reputation”; the claimant’s strengths and development areas as well as his development plan. At the end of the year there would be an assessment with regards to his overall performance, whether it was “below expectations”; “mostly meets expectations”; “fully meets expectations”; or “exceeds expectations” (211-222, 239-252, 423-431).[38]With P4Gs an employee is told of the distinction between the “what” and “how”. Discussion around the “what” really relates to the targets set by the employer, namely the employee’s line manager. In the claimant’s case, as brand ambassador, it was the sale of liquor products. This would include the shop sales targets, the claimant’s personal sales targets and the sale of what is described as focus brands. These are special promotional products sold on a monthly basis. A discussion about the “how” revolves around the way in which how the targets are achieved to include a brand ambassador’s behaviour, relationship with others and compliance with procedures. The brand ambassadors were each expected to enhance sales by between 15-20%.[39]Prior to April 2012 the respondent set SMART (specific, measurable, achievable, relevant and timely) objectives based on liquor sales, essentially Johnnie Walker products.[40]We find that the claimant is reluctant to accept that the respondent had moved away from the SMART method to the P4G, team sales and focus brands. His concern seemed to be centred around what he perceived as the respondent’s inability to determine the extent of a brand ambassador’s personal sales.[41]In August 2013, Ms Claire Braxall, the claimant’s line manager, decided to place the claimant on a performance improvement plan. The plan was implemented on 14 August 2013 as Ms Braxall noted that the claimant had struggled with performing to expectations in his role as brand ambassador resulting in a “below expectations” ranking for the full year, 2013-2014. She noted: “We have been working with Harry on a regular basis to help him understand the Diageo’s WDFG objectives and focus, as well as the reason for targets and measurement KPI’s in place. However, Harry continues to push back on these.”[42]Monthly target meetings were held with Ms Braxall and Elina Fruin, global customer manager, to assist the claimant with monthly focuses to drive an improvement in key areas. However, there was no visible improvement as a result of the meetings. As part of the Personal Improvement Plan expected outcomes were set and deadlines given (121-123).[43]On 16 October 2013, Ms Braxall reported to Ms Sarah Bowers, human resources business partner, that although PIP sessions were held with the claimant for over a month there had been some minor improvement in his performance but the majority of changes had not taken place. She stated that the claimant had challenged the focus brands and strategy despite a specific session held with Mr Paul Downing, director, who explained the WDFG strategy and the key account strategy within the overall global travel and Middle East function. Ms Bowers’ response was to email Mr Zenon Grobler, employee relations specialist. She stated that the matter needed to be progressed to a more formal stage (137-139).[44]The claimant was written to by Ms Braxall on 4 November 2013 who invited him to a performance hearing on 14 November 2013. The purpose of the hearing was to discuss the allegation that he was failing to achieve the minimum required standard of performance and was failing to demonstrate the required capability as set out in the performance improvement plan. She enclosed a copy of all relevant evidence to be referred to at the hearing. He was advised that if he wanted to refer to any documentation he must send the relevant documents in advance of the hearing. He would be given the opportunity of responding to the concerns raised in relation to his performance. He was warned that a possible outcome may be disciplinary action (141).[45]In attendance at the performance hearing were Ms Braxall, the claimant, Mr Grobler and Ms Chiara Veronese, who took notes. Ms Braxall went through the documentation in relation to the PIP and discussed the targets. The claimant’s response was to say that what she had said was clear but not applicable to him as a store manager and team leader would give him different targets. He stated that previously he had targets on single brands and that they made more sense, together with the WDFG ones. He wanted to stick with the Terminal 3 WDFG targets. Ms Braxall explained that for financial year 2013-2014, the targets were not achieved on brands. The claimant had Terminal targets and focus brands. The claimant was asked by Mr Grobler whether he thought the targets were fair. He responded by saying that he thought that they were almost fair. Ms Braxall stated that other brand ambassadors had no difficulty in achieving the targets. The claimant agreed that he did not reach the target but that his role was different from his previous role. He maintained that the store had different targets. He said that he was given a fair opportunity to have his say during the meeting (158-161).[46]The outcome of the hearing was that the claimant was issued with a first written warning in writing on 19 November 2013 by Ms Braxall, trade marketing manager. She wrote the following: “I am writing to confirm the decision taken at the disciplinary hearing held on Thursday 14 November 2013 that you be given a first written warning under the company disciplinary policy. The reasons for this warning are that during the PIP process you continued to push back on the way that Diageo measure and evaluate BA’s based on total Diageo performance despite numerous explanations in one-to-one sessions, group BA sessions and a session with Paul Downing, regional director, to explain the methodology and reasoning from Diageo on the targets and the WDFG overall objectives, which flow down to BA’s. I don’t foresee this attitude changing in the immediate future, and therefore it will continue to affect your performance against our expectations. In addition, no significant progress was made on the majority of specific outcomes and actions of the PIP over the period, nor has your attitude and understanding of the measurement methodology changed. The weekly meetings tended to be a reminder for the action and deadlines rather than any pro-activity being taken or ownership of the actions by you. The warning will last for a period of six months from the date of the disciplinary hearing. Any repetition either of the same capability issues or failure to improve and maintain performance within the next six months will result in you being called to another disciplinary hearing which may result in further disciplinary action.”[47]The claimant was advised of his right of appeal. He did not appeal the decision.[48]Following on from the performance hearing and decision taken, Mr Wilson met with the claimant on 21 November 2013 to discuss the performance issues and placing him on a second PIP. They agreed dates when they would meet (168-172).[49]The claimant lodged a grievance on 22 November 2013 complaining about Ms Braxall’s attitude towards him alleging that she told him that he would be dismissed as he had downloaded an extra web browser to help him in his job. He asserted that she told him that he did not bring value to the business. She had publicly humiliated him. Her concerns about compliance issues were insulting to him as it was raised in an inappropriate forum which caused damage to his reputation and professional status. He said that all his requests for training were turned down. He had asked for PETI training for non-finance managers, presentation skills and sales management skills. He said that he was told that he was not suitable for any of the positions and that he had asked to be moved to the innovation department. He said that he had written to Ms Braxall about the position of outlet representative and her response was that he should talk to her before he applied. Consequently, he felt that he was not given the opportunity to apply for the position bearing in mind it was offered to him five years previously. She rated him “below expectations” (177-178).[50]His grievance was investigated by Ms Kate Simpson, senior brand manager, Captain Morgan. She met with the claimant on 17 December 2013. This was followed by Ms Braxall’s response to the allegations (196-198, 235-237).[51]Ms Simpson’s outcome letter was sent to the claimant dated 27 February 2014. By then Ms Braxall was no longer the claimant’s line manager as she had handed over to Mr Wilson in or around November 2013. In summary she rejected the claimant’s concerns raised in his grievance. In relation to the outlet representative’s role, Ms Braxall was following the respondent’s policy and advised all staff to contact her if they were interested in applying for the post. Ms Simpson could find no evidence of the claimant being blocked from applying for the role. She said that there was a change in process and the way it was approached by Ms Braxall caused confusion. She acknowledged that there were some mistakes made by Ms Braxall and recommended that she should receive line manager training or coaching as there were some matters which could have been handled differently, such as compliance issues. Instead of sending emails she could have contacted and spoke to the claimant by telephone. Ms Simpson stated that she would recommend that the claimant received training on the P4G process and what is taken into consideration when ratings are decided, that is not just sales results. She also stated that she would recommend that his new line manager was made aware of the issues raised and to offer him support in areas of uncertainty. Ms Simpson acknowledged that it was Ms Braxall’s first line manager role and that the claimant’s role was new to the respondent’s structure with new targets and performance objectives and new ways of working. She also advised him of his right of appeal (260-263).[52]On 6 March 2014 the claimant appealed against the grievance outcome. He wrote the following: “I have explained at which points of the outcome appealing. As a general note, I feel I have been treated unfairly and discriminated and that this is due to Claire Braxall’s inexperience. I also feel I have been put through five PIP’s because of this. Now Mr David Wilson has agreed in two basic points. 1. Focus brands to be agreed first with WDFG. 2. Reported personal sales on focus brand cannot be verified. Thanks again for your time and the professional way you are handling this matter.” (265)[53]Mr Grobler acknowledged the claimant’s appeal and invited him to provide further details in his letter dated 11 March 2014 (266-267).[54]The claimant provided further details of his grounds of appeal on 13 March 2014 (270-274).[55]Mr David Wilson emailed the claimant on 14 March 2014 informing him that the PIP process would come to an end pending a satisfactory review of his performance against the personal targets set. He stated that the claimant had made significant progress against the objectives specified in the PIP. He noted that the claimant’s behaviour had changed during the preceding four to give weeks. The quality of the conversations had improved, as had the claimant’s work submitted for review. Mr Wilson, as the claimant’s line manager, then wrote: “It is critical that this is maintained ongoing as any slip back into the old ways of working will mean that this process could be revisited at any time. Specifically, I want you to be clear on the nature of the targets which I have set for you. We have spoken many times about their validity through this process but I want to be clear – this is the last time I want to discuss this; we all have targets to hit and it is critical that we spend time working out how we hit them rather than whether they are ‘right’ or not. I will now formally hand over line manager responsibility to Irina moving forward, but I will be requesting updates regularly to ensure a consistent change in WOW is evident. I will review the targets when available and get back to you.” (277)[56]Mr Wilson had extended the claimant’s PIP on 10 January 2014 setting revised targets and objectives (229-234).[57]The claimant passed his PIP on 14 March 2014 (277).[58]The grievance appeal hearing was held on 11 April 2014. It was conducted by Mr Colin Cameron, marketing manager. Also in attendance were: Mr Stewart Derrick, employee relations support; Ms Angela Teicher, note taker; and the claimant who was unaccompanied. Notes were taken of the hearing. The claimant agreed that he had decided not to be accompanied at the hearing. He acknowledged that out of the 11 points raised he was appealing against 6 of them. One such matter was his application for the position of outlet representative and Ms Braxall’s response. He acknowledged that he had written to Ms Braxall regarding the position of the outlet representative vacancy and she replied that she wanted to talk to him before he applied. The claimant alleged that he was not given the chance to apply for the post, notwithstanding the fact that it had been offered to him five years previously. The claimant was informed by Mr Cameron that he had considered the email correspondence between him and Ms Braxall on 8 February 2014, which did not support the claimant’s contention. In relation to the claimant’s assertion that he had been discriminated against because of his age and race he replied by stating that it was only word of mouth and there was no concrete evidence. He said: “I felt this was discrimination. I expressed interest to Claire.” He said that he had been discriminated against because he was much older than the person who eventually got the position, namely “younger girl”. The claimant also made reference to Ms Braxall commenting on the quality of his writing (295-302).[59]In Mr Cameron’s outcome letter dated 15 April 2014, he noted that the claimant’s desired outcomes were: to get his career back on track; remove the written warning; and getting back to normality. Mr Cameron then considered the claimant’s grounds of appeal as articulated in his appeal document and during the course of the hearing. In his findings he dismissed the claimant’s appeal. In relation to the desired outcomes he wrote: “In specific response to your desired outcome of the appeal:• “Your career back on track” – we discussed and confirmed that you currently have a good working relationship with your current line manager, and feel that your career is back on track.• “Remove the written warning” – we confirmed that your written warning is due to expire on 14 May and will be removed from your record, subject to no new issues being raised with regards to the written warning.• “Want to get back to normality” – you stated that you now feel things are back to normal and are enjoying your role again.” (303-309)[60]As the claimant had exercised his right of appeal, under the respondent’s grievance policy Mr Cameron’s decision was final.[61]Ms Irina Chirilescu, became the claimant’s line manager in January 2014 but in relation to his Performance Improvement Plan that was managed by Mr Wilson who handed over that responsibility to Ms Chirilescu in March 2014 after the claimant had passed his PIP.[62]On 15 April 2014, Ms Nathalie Reynolds of World Duty Free Group emailed Mr Paul Martin with regard to the claimant’s conduct. She wrote the following: “Hi Paul, Apologise for coming to you with such a problem however you are my last resort. I had the second person this week telling me that Harry from Diageo keeps taking his shoes off in our tea room which is upsetting our staff. They are not comfortable to challenge him and I have in the past but he got too aggressive with me. Not sure what to do but I need to stop this. What is the best way forward? Please do not forward this (my email) to his superiors and would like to have this remain confidential, however I do need to have it sorted.” (332)[63]Mr Martin, a trading manager for World Duty Free Group, emailed Mr Craig Alves-Veria of Diageo forwarding Ms Reynolds’ email and inviting Mr Alves-Veria to have a quiet word with the claimant. Mr Alves-Veria emailed Ms Chirilescu forwarding the Reynolds email and inviting her to discuss the matter with the claimant but not to forward Ms Reynolds’ email to him. Ms Chirilescu agreed, on 16 April 2014, to have a word with the claimant (331).[64]On 13 May 2014 Mr Roymon George emailed Ms Vicki Folly and Genevieve Woods of Blackjack regarding the claimant’s behaviour. He wrote: “Hi, Harry from Diageo asked me now to give him a stocktake for Talisker. I told him that I will be sending a stocktake tonight to Gen and Vicki. He said I am from Diageo and I want it now. I told him that if you want it now you can go upstairs and do it yourself as I can’t leave the shop floor now. To which he said he’s going to make a complaint about me. The way he approached and asked me was just not right.”[65]This email was forwarded by Ms Folly to Ms Braxall and to Mr Alves-Veria on the same day. Ms Braxall then forwarded the email to Ms Chirilescu also on the same day and suggested that there should be a meeting between her, Ms Chirilescu and Mr Alves-Veria the following week (310).[66]Ms Chirilescu talked to the claimant about the complaints.[67]On 13 May 2014 the claimant emailed Ms Chirilescu also complaining about Mr George’s behaviour towards him. He stated that he had asked Mr George how many bottles of Talisker there were left. He behaved professionally at all times and did not raise his voice. He accused Mr George and others of lying about him to cover themselves. With reference to the World Duty Free complaint he stated that staff in the staff room also put their feet on the chairs. He also forwarded a picture of a World Duty Free Group staff member with her feet on a chair (328-330, 333).[68]On 30 May 2014, the claimant was due to attend a meeting via telephone with Ms Chirilescu and Mr Wilson to discuss the complaints received from Blackjack and World Duty Free. He did not attend the call and did not inform either Ms Chirilescu or Mr Wilson that he would be unable to make the call. Mr Wilson then emailed the claimant to ask where he was and to remind him that as it was a meeting that he had accepted he expected the claimant to respond. The claimant replied some 40 minutes later stating that he was in the basement and did not have reception. He was, therefore, unable to make a call on his mobile phone (583, 587).[69]We find that the claimant, having agreed to the date and time of the telephone meeting, chose to be in an area where there was no reception thereby making himself unavailable for the meeting. It was perfectly possible for the claimant to have moved to a different location in order to participate in the meeting.[70]On 22 June 2014 Mr Tim Mayes, global travel Middle East – key accounts, interviewed the claimant and completed a questionnaire covering the claimant’s responses to a number of matters such as: policy knowledge; risk management; external partners; information source; audit results; line managers; leadership; ownership and accountability; and conflicts of interest. After completing the questionnaire and speaking to the claimant, Mr Mayes submitted his report to Ms Rani Muniweera. The claimant had scored 30 out of 51. Mr Mayes noted in his report the following: “Hesitant and unclear at times – got better through the interview but a clear risk. He claims to have reported a breach to Dave Wilson this year on sampling stock in WDF – he articulated it so poorly that I didn’t fully understand despite repeated questioning. I see this as a risk because he is claiming to have reported breaches I think without fully understanding – spoke with Dave about this but it needs to be investigated since if I was an auditor the can of worms would be wide open.”[71]In relation to the questionnaire and interview of the other brand ambassadors, Mr Mayes noted in respect of Mr Alves-Veria that he was confident, articulate and appeared to know policies well with a few development areas. In relation to Mr Suneel Panchal, he too was confident and articulate and appeared to know policies well (346-350).[72]On 7 August 2014 Ms Chirilescu emailed the claimant a copy of the diagnostic questionnaire score card relating to Mr Mayes’ audit. A number of matters were scored 0 or 1 which was unacceptable. In August 2014 the claimant was put on a Performance Improvement Plan by Ms Chirilescu. This was because a claimant had received a “below expectation” rating for 2014. When the claimant was informed by Ms Chirilescu that he was to be placed on a PIP he challenged her decision stating that there was nothing he did not know about his job. That he had passed successfully five previous PIPs with Mr Wilson and said because he acted like an owner he got punished (375).[73]In the PIP Ms Chirilescu noted the following: “During F14 Harry has struggled with performing to expectations of Diageo brand ambassador role, resulting in a below expectations ranking for the full year. Despite the fact that Harry has already passed a PIP process, he continues to struggle with accepting the company targets. We have been working with Harry on a regular basis to help him understand the Diageo WDF objectives and focus, as well as the reason for targets and measurement KPIs in place; however Harry continues to push back on these.”[74]The claimant was required to focus on: building great relationships; personal crisis management; engage in weekly conversations with Ms Chirilescu on monitoring his progress on the PIP expected outcomes; coaching for improvement; on links between P4G objectives; and demonstrating commitment to showing step change in behaviour on the expected outcomes outlined in the PIP. Target dates were also set (373-374).[75]On 18 September 2014, Ms Chirilescu wrote to the claimant informing him that his performance had improved significantly and that he was performing to the required minimum standards for his role. She then went on: “Whilst I am pleased with the improvements you have made, I would like to take the opportunity to be clear that I expect you to maintain this level consistently. Your performance will be reviewed under the normal supervisions and review processes. Should problems with your performance arise in the future, further action under the company’s disciplinary policy may be taken and the Performance Improvement Plan will again be initiated. May I congratulate you on the effort you have put into improve the standard of your work and your task behaviours. I hope that you will be able to continue this improvement, and would encourage you to seek assistance immediately should you experience any problems, uncertainties or concerns in the future.” (384)[76]On 5 January 2015, Mr Russel Snow, retail marketing manager, became the claimant’s line manager. During his first meeting with the claimant they discussed performance issues and it was agreed that the claimant should move from Terminal 3 to Terminal 2 to give him a fresh start. However, in Mr Snow’s view, after about five or six months the claimant started to fall into his old behaviours in thinking that other people were taking his sales. This resulted in a customer complaint about harassment. It was, therefore, becoming increasingly clear to Mr Snow that the claimant was unable to change his behaviour. He was trying to show that he was on the receiving end of any issues and that he was not the cause of it. The claimant’s conduct in relationships with other sales staff was central to his behaviour issues and despite Mr Snow’s efforts the claimant did not exhibit consistent demonstration of what was expected of him. As a result Mr Snow decided that it was appropriate for the claimant to be placed on a Performance Improvement Plan as he was struggling to perform to the expectations of the brand ambassador role. At the end of the year an employee’s performance is calibrated and a level is given to each employee’s performance. For the claimant he was rated as “below expectations”. In Mr Snow’s view he was often disruptive on the shop floor. Such behaviour had a negative impact on the claimant’s team members and risked a negative impact on the respondent’s reputation. As a brand ambassador he had to be able to work alongside other brand ambassadors of the respondent’s competitors and the claimant was showing that he was unable to do so. Mr Snow’s opinion was that the claimant had a different perception of how he was performing. His performance was on a number of areas including understanding the respondent’s objectives and focus brand; his attention to detail; finding solutions and opportunities; and understanding the overarching Diageo strategy. However, the claimant was not meeting expectations.[77]The respondent carries out an iCat study which is where employees state their perception of how they are operating in the business. The claimant gave himself, as part of the study, grades two levels above his line manager’s. In relation to increase in sales he was being out-sold by all brand ambassadors at Terminal 2 despite the fact that Terminal 2 is a great market for selling whiskey, including one of the respondent’s flagship brands, Brora which retails for £7,000 per bottle. The claimant did not sell a single bottle whilst other brand ambassadors made multiple sales in the same working environment. These matters led Mr Snow to put the claimant on a Performance Improvement Plan. We shall return to this later on in our judgment.[78]As a result of a computer error in July 2015, the claimant along with his work colleagues received an over-payment in their July pay. In the claimant’s case the over-payment was £4,268.81. Mr Vitaliy Vityuk was over-paid the sum of £3,430.50. Mr Snow was over-paid the sum of £550.00. Mr Alves-Veria the sum of £3,339.37 and Mr Desmond Horscroft the sum of £2,649.17. Mr Snow instructed all of them to put the amount of over-payment aside as that would be recovered by the respondent in due course (443).[79]The respondent had deducted on different dates different sums of money from the claimant’s pay in respect of his final pay the sum of £2,277.49 was deducted as that represented the claimant’s payment in lieu of notice. This left a balance of £1,155.16 which is the sum the respondent seeks to recover from the claimant. The claimant does not dispute that he is liable to pay that sum. His only concern that he would like to pay it at the rate of £200.00 per month having regard to his powerless financial circumstances.[80]On 16 August 2015 Mr Snow, together with Mr Alves-Veria, were flying to Scotland for a business meeting. Whilst at the terminal they saw the claimant walk off the shop floor to put on his tie at 8.15am when his shift started at 8.00am. He was approached by Mr Snow who asked him where he was going who responded by he was on his way to the toilet to put his tie on. Mr Snow and Mr Alves-Veria then carried out an inspection of the shop floor and noticed that there were a number of matters not addressed by the claimant such as labels on products not being displayed properly and bottles not positioned correctly. When these were discussed with the claimant, according to Mr Snow, he did not respond favourably to the criticisms. He was argumentative and defensive. Mr Snow’s concern was that the claimant should have already had his tie on to start work at 8 o’clock. After their discussion the claimant emailed him and Mr Alves-Veria on the same day in respect of a particular product, Zacapa, the claimant referred to the comments as nitpicking for no reason. In relation to Mr Snow speaking to him while he was on his way to the toilet to put his tie on, the claimant wrote: “Regarding seriously telling me off because of me walking in the toilet to put my tie on, I feel is unacceptable and ridiculous. I am cycling to Heathrow therefore I keep my tie off. I like to go to the toilet to put my tie on so to have a good look of myself and my grooming. My colleagues just told me they never seen Des (Horscroft) with a tie on, we cannot have double standards, I never been without tie in the shop floor. And most importantly you two come in contacting business talking to WDFG management representing myself and Diageo not dressed appropriately to say the least, one consultant told me this guy looks like (he) needs a wash!!! I have seen Diageo management travelling to Far East, not contacting business in the WDFG always in suit and tie.” (446)[81]Mr Snow found the claimant’s response to be personally offensive and was a tirade of ramblings and was not sure as to whom it was aimed at, whether it was him or Mr Alves-Veria.[82]A mystery female shopper had visited the store on 24 September 2015 and noted that while the claimant was welcoming and prepared to discuss with her brandy products, he abruptly left her to engage in discussion with another customer. The mystery shopper noted that there was no attempt to close the sale and that whilst a WDFG colleague had stepped in after a brief period to offer assistance, the claimant made no attempt to return to the mystery shopper which was disappointing after a good start to the interaction (496-497).[83]On 16 September 2015, the claimant was told by Mr Snow that he would be arranging review sessions and that they would be held on 25 September, 2 October and 7 October 2015. This was to discuss the running of the PIP for a period of three weeks (450).[84]The claimant did not attend the meeting scheduled on 25 September 2015. He had met with Ms Fruin prior to 25 September and disagreed with the reasons for placing him on a PIP and that he would be complaining in writing (458).[85]The claimant wrote to Ms Fruin on 20 September 2015 strongly objecting to being placed on a further PIP. He questioned the respondent’s method in assessing sales and stated that Mr Snow and Mr Alves-Veria were acting under Ms Fruin’s instructions when they visited the store on 16 August 2015. It was her attempt at trying to pick on him near the end of his P4G. He clearly stated in his email to Ms Fruin that he had no intention of engaging in a further PIP. He wrote: “In view of the above I do not accept “below expectations” and I am refusing to do another PIP… “ (460-461)[86]As a result of the claimant’s failure to attend the meeting to discuss the PIP process on 25 September 2015, the matter was considered as a potential disciplinary issue and referred to Ms Shalinee Basak, human resources business partner for global travel and Middle East, to conduct an investigation. She wrote to the claimant on 7 October 2015 inviting him to a disciplinary investigation meeting to be held on 9 October 2015 at 9.30am. She stated that her investigation was in regard to the following allegations: “1. An ongoing and concerning pattern of failing to consistently apply sufficient effort to perform your job to a satisfactory standard (historic concerns dating from November 2013 to now); 2. Insubordination (wilful refusal to follow reasonable line management instruction); 3.(a) Failing to attend a pre-arranged performance review meeting with your line manager on 25 September 2015 at 9.30…(b) Refusing to engage with the company’s performance improvement process in response to highlighted evidence of under performance”[87]He was advised that he was entitled to be accompanied by an Employee Forum representative or a workplace colleague at the meeting and was informed that the investigation did not constitute disciplinary action and does not imply any assumption as to guilt (484-485).[88]The meeting was rescheduled for 12 October 2015 as the claimant was unable to attend the meeting as originally scheduled. At the meeting the claimant was advised by Mr Grobler that he could have someone to accompany him and could adjourn the meeting at any time. The claimant’s response was to say that he appreciated their professionalism and thank them. He did not apply for an adjournment to have someone to accompany him.[89]The claimant said that Ms Fruin’s feedback was negative and that he disagreed with her which was why he refused to undergo a further PIP programme. He said that he had accepted the earlier PIPs. He maintained that his behaviour was good and he was not doing anything wrong. It appeared to Ms Basak that the claimant did not understand the legitimate concerns the respondent had and had a disjointed view of his conduct and behaviour. He was incapable of taking on constructive feedback in order to perform his role adequately. The claimant wanted evidence of the complaints received by the respondent and in respect of the Blackjack complaint they concerned trivial issues. In relation to compliance issues which related to spot checks carried out on employees where they can be interviewed as part of an audit, the claimant said that he had passed his compliance test and therefore did not think that there were any issues about his compliance. Ms Basak knew as a fact that the claimant had failed the test and his view that he had passed was not correct. The claimant also refused to accept that there were any issues in relation to his behaviour. The claimant also disagreed with Mr Snow’s concerns in the Performance Improvement Plan about his performance. The claimant told the tribunal in evidence that the compliance conducted by Mr Mayes was not official whereas in the past he had passed the official compliance test. The claimant said that in his mind there was a conflict between focusing on brands and merchandising. He said he understood the targets. In relation to the insubordination allegation in that he had failed to attend a meeting on 25 September without any notice, he stated that he did give notice and that the allegation was wrong. The email that he had sent to Ms Fruin listed the reasons why he was not going to attend the meeting. He confirmed that during the investigation interview that he did refuse to attend the meeting. The claimant understood that if he was invited to attend a meeting the expectation was that he would be attending. Ms Basak took the view that this allegation of insubordination was well founded. The claimant maintained that he believed that Ms Fruin was out to get him. He stated that he had never had a negative feedback from WDFG. He asserted that Mr Horscroft had been promoted but this was disputed by Ms Basak. There was then a discussion about the claimant being placed on multiple Performance Improvement Plans to which the claimant alleged that it amounted to harassment (499-510).[90]Mr Snow was interviewed on 13 October 2015. He told Ms Basak that the claimant displayed reasonable product knowledge but did not achieve any major uplift in sales. Mr Snow believed that the claimant was always blaming somebody else for his behaviour. He did not exhibit much self awareness. He stated that the claimant had declined to attend a meeting on 25 September and that he was only made aware either in the morning or late the night before. He then gave an account of the meeting with the claimant on 16 August 2015 when the claimant was on his way to the toilet to put on his tie (515-522).[91]Ms Fruin was interviewed on 14 October 2015 who said that in relation to the capability assessment the respondent’s expectations of the claimant included brand knowledge; sales skills; shop floor leadership; and compliance. In Ms Fruin’s view the claimant exhibited poor brand knowledge which affected his ability to influence customers and achieve greater margins for the respondent. She said that Ms Chirilescu’s assessment of the claimant was that he could not sell products. He could not articulate a particular brand. She stated that brand ambassadors had to generate a minimum of 15-20% uplift and the claimant was aware of this expectation. The claimant’s approach was to continually argue about the targets being wrongly set and that she had not heard any positive feedback about the claimant from customers. In her opinion there seemed to be a constant negative complaint about the claimant. Ms Basak then talked to Ms Fruin about a 12 month view of the claimant’s performance which was not favourable. They then talked about the claimant’s refusal to attend the meeting on 25 September 2015. She had called the claimant the day before the meeting as he had not accepted the purpose of the meeting. She denied having been informed prior to the meeting by the claimant that he would not be attending (523-530).[92]On 21 October 2015 Ms Basak interviewed Ms Chirilescu. Ms Chirilescu echoed similar concerns about the claimant’s performance. She stated that there were no competition between WDFG and the respondent. She was asked whether the claimant had expressed any displeasure about the KPIs being set. She confirmed that they had had discussions about sales targets and KPIs and that the claimant had agreed with the KPIs and the way they had been set out. She confirmed that this was covered in the Performance Improvement Plan that had been in place between her and the claimant and that he had not complained about the assessments and how they were completed (531-534).[93]The claimant was sent copies of the meeting notes on 22 October 2015 and commented on them on 26 October. He objected to the accusation that he had failed to engage in the Performance Improvement Plan and in relation to the assessment he complained that he was being singled out (535-536).[94]On 29 October 2015 Ms Basak wrote to the claimant asking whether he wanted to submit any evidence in relation to the allegations for her to consider before completing her report. The claimant did not send her any further information.[95]Ms Basak completed her report in or around November 2015. She found that there was a prima facie case to answer pursuant to answer pursuant to the respondent’s disciplinary procedure in respect of the allegations and recommended that the matter should proceed to a disciplinary hearing (543-553).[96]By letter dated 13 November 2015 sent by Mr Craig Austin, employee relations manager – global function/Europe, the claimant was invited to a disciplinary hearing to take place on 18 November 2015 at 9 o’clock. The allegations were those as set out in the invitation to the investigatory meeting. The letter was a word document sent by email to the claimant and was acknowledged by him. The allegations were in relation to the claimant’s conduct and not capability (557).[97]On 11 November 2015, the claimant emailed Ms Basak asking whether there was a worker’s union in the workplace as he wanted to ask someone representing the union to accompany him at a hearing. His email was responded to on 12 November 2015 by Ms Basak who stated that there was no recognised trade union in the workplace but he had the right to approach his Employee Forum representative, who was Ms Muniweera, to accompany him or another employee of the respondent (554).[98]On 18 November 2015, the claimant did not arrive for his 9am disciplinary meeting. At 9.15am, Craig Austin telephoned the claimant who told him that he had mistaken the time of the meeting for 10am. Mr Austin then told him not to attend as it was too late.[99]At 9.33am on 18 November 2015 Ms Basak emailed the claimant expressing disappointment at his failure to attend and reminded him he had received arrangements for the meeting. He was advised that his failure to attend the meeting was a conduct issue which the respondent would have to give consideration to especially in light of the disciplinary process that was going through (559).[100]The claimant responded to Ms Basak’s email 12 minutes later stating the following: “I am sorry I was on my wave. It happens. I had no invite in my Blackberry. Too much in my head these days. The IT told me I may have to take my laptop in for repairs, it locked itself out. I (cannot) see my emails.” (558)[101]On 23 November 2015, Mr Austin wrote to the claimant inviting him to a rescheduled disciplinary hearing on Wednesday 2 December 2015 at 9am. He repeated the two allegations and made reference to a third allegation to reflect the claimant’s failure to attend the meeting on 18 November 2015. The third allegation was: “3. Your failure, without good reason, to attend the original disciplinary hearing that was scheduled to take place on 18 November.” (560-561)[102]We find that the claimant knew that the disciplinary hearing was scheduled to take place on 18 November 2015 at 9am. When he was contacted by Mr Austin at 9.15am he had not set off for the meeting and as a result Mr Austin instructed him not to attend. We further find that the claimant was reminded by Ms Basak the previous week that the meeting was due to start at 9am. He, therefore, had knowledge that the meeting was due to start at 9am on Wednesday 18 November 2015 (559).[103]The meeting went ahead as rescheduled on 2 December 2015. It was chaired by Mr Stuart Cook, head of CP&A off-trade. Also in attendance were Mr Austin and Ms Serena Sidaway, note taker. The claimant attended unaccompanied. He gave a similar account to the account he gave in respect of the allegations put to him by Ms Basak during her investigation meeting. It was put to him by Mr Austin that he, Mr Austin, had sent the letter inviting the claimant to the disciplinary hearing on 18 November 2015 and that the claimant had replied with an attachment signifying that he received the letter and had read it. The claimant responded by saying that that did happen but he did not have the chance to look at it again as in his mind he was of the view that the meeting was due to start at 10am. He said that he was on his way to start at 10am. He objected to the expired warning being a relevant issue but was informed by Mr Austin that whilst it had lapsed it was still relevant to the narrative around poor performance. The claimant was informed at the end of the meeting that the disciplinary hearing would reconvene on 7 December 2015 at which Mr Cameron would deliver his decision (566-571).[104]On 7 December 2015 at the reconvened disciplinary hearing attended by Mr Austin, the claimant, being unaccompanied, and Ms Sidaway Mr Cook gave orally his decision. He stated the following: “Having reviewed the available evidence, spoken with you at length, and sought further clarification from your business area, I am now in a position to deliver my findings. I would like to begin by expressing my serious concerns about a very worrying pattern of behaviour that has resulted in your failure to attend two extremely important scheduled meetings; namely a performance meeting with your line manager, and the original scheduled disciplinary hearing. In my mind this evidences serious insubordination, and a failure to take these matters sufficiently seriously. Sadly, I believe these to be wholly representative of your ongoing refusal to respond to reasonable and important management instructions – a foundation of a healthy employee/manager relationship. It is clear that you do not either respect or give due priority to such fundamental requests. Given that you have acknowledged both breaches of conduct and failed to provide any compelling evidence in respect of mitigating circumstances I find that both of these allegations – 2 and 3 (which I believe to be instances of serious misconduct) are proven. I find that each of these breaches would warrant a final written warning. In respect of concerns relating to an ongoing and concerning pattern of you failing to consistently apply sufficient effort to perform your job to a satisfactory standard (historic concerns dating from November 2013 to now) I find the following:(i) You have in your own words ‘passed’ three PIPs but it is clear that you do not agree with (or respect) your defined KPIs. This demonstrates to me that you can do what you are asked to do when the rigour of a PIP is applied, but as soon as the focus is off you you appear to go off and do what you want re the manner of selling products.(ii) On the point of you effectively not accepting your KPIs you stated in the disciplinary hearing meeting (Wednesday 2 December) that you were pleased with what you believed to be your new/changed KPIs (announced on the previous day): “Yesterday we received sales targets for Christmas period, 90% right there are what I have been asking for about four years now”. As a consequence you claimed that you can now do your job properly. I adjourned the meeting as I wanted to check on this situation. I have subsequently received in writing from two managers (one grandparent) that the KPI/target structure has not changed at all, and that they were both very confused by your claim that it has.(iii) You have also claimed that you do not get regular support and communication on your performance. Again, I adjourned the hearing to check on this point. From the evidence that I have seen, you have had consistent communication from your line managers over the years, most of what I have seen emanates from unnecessary issues that you appear to be creating. It is particularly telling that you shared with me your view that your colleague in an equivalent role does not challenge his KPIs or requires ways of working.(iv) I get a very strong sense that you believe that your performance is significantly better than it actually is. I have seen documented evidence of this fact with you rating yourself higher (on an iCat) than your manager. Your strong belief that your performance is very good would appear to demonstrate poor self awareness.(v) Given the evidence to hand, my view on your performance is that given the degree to which you resist the focus of your KPIs you actually spends time negatively, trying to find fault in them and the people who you work alongside rather than actually get on with your role and as a result, your performance is patchy and inconsistent. In conclusion I find that on the evidence before me, and the nature of our discussion, that allegation 1 in respect of you failing to apply sufficient effort is proven. Unfortunately, I also find that the cumulative effect of the two proven instances of serious misconduct (instances that would normally both attract final written warnings) mean that you will be dismissed from your employment as of today. You will be paid your contractual notice alongside any holiday owed to you.” (572-573)[105]A letter was sent dated 8 December 2015 confirming the outcome of the disciplinary hearing (588-590).[106]On 14 December 2015 the claimant submitted his grounds of appeal against the decision to terminate his employment (608-612).[107]By letter dated 21 December 2015, Mr Austin wrote to the claimant inviting him to attend the appeal hearing scheduled to take place on 7 January 2016 at 2.30pm (613).[108]The claimant attended the appeal hearing and again was unaccompanied. Mr Graham Penter, consumer pricing, promotions and www director; Ms Robyn Harvey was the note taker. Also in attendance was Mr Derrick, human resources representative. The appeal hearing was a review and not a re-hearing. The claimant gave an account similar to the account he gave at the disciplinary hearing. After considering the claimant’s account and all relevant evidence, Mr Penter came to the conclusion that the claimant’s appeal should be dismissed. He wrote to him on 19 January 2016 confirming his decision (653-655).[109]On 23 January 2016 Ms Basak emailed the claimant setting out an account in relation to the over-payment by the respondent in July 2015 and that there would be a deduction of £2,277.49 from his final pay to set off the over-payment at that time of £3,660.65. She also stated that his P45 would be despatched to him in the post sent to his address and she gave what appears to be his old address. There was no indication from the claimant that he had corrected Ms Basak in relation to his address. He told the tribunal that correspondence sent to his old address would be forwarded to him (656).[110]In relation to the over-payment, from the sum of £4,268.81 the respondent deducted £608.16 leaving a balance of £3,660.15. From that figure £228 was deducted from the claimant’s pay leaving the figure of £3,432.65. £2,277.49 was deducted from the claimant’s final salary, giving the balance of £1,155.16.[111]In relation to the outlet representative post, Ms Braxall wrote to the claimant on 8 February 2013 following his email to her on the same day stating that he would like to apply for the position. Her response was the following: “Harry If you wish to apply I suggest that as we discussed in the meeting on Wednesday you apply via the career shop access. You will also be able to read the job description there to better understand the expectations of the role, again this was all confirmed at the meeting last week.”[112]She then sent him a further email stating that the role profile was advertised on career shop and she suggested that he should review it and then let her know if he had any questions.[113]Although the claimant said that he was prevented from applying for the position based on his perception that Ms Braxall had a negative view of him, from the email chain it is clear that Ms Braxall placed no obstacles in the claimant’s way and advised him that he would need to apply via the career shop process. Further it was company policy that an employee would need to discuss with his or her line manager their intention to apply for a vacant position. Further, Ms Braxall was not the decision maker in relation to any applications for the post of outlet representative. The decision as to whether a particular candidate should be offered the post was that of the recruiting manager.[114]The claimant claimed that not being offered the position of outlet manager was an act of direct race discrimination based on his Greek national origins or his age. He was born on 4 August 1963. At the time in or around February 2013, he was 49 years of age. The successful applicant had the offer withdrawn due to an undisclosed conviction and the post was re-advertised, but again the claimant did not apply.[115]The claimant asserted that his colleague, Mr Desmond Horscroft, brand ambassador, was promoted to trainer in 2015 but he was not offered that role. We find that Mr Horscroft was the best performing brand ambassador and wanted more challenges in his role. The trainer position was temporary. The claimant alleged that he had been denied training but we are satisfied that he did attend a number of training sessions, some of it were online courses, some external (85-87).[116]We are further satisfied that Ms Chirilescu provided the claimant with on the job training. Although the claimant wanted to go on training in relation to net sales value, we find that such training was not relevant to his role but relevant to the role of account manager. Pricing and efficient trading investment training was also not relevant to the claimant’s role as it concerned confidential information in relation to the respondent’s pricing structure and policy.[117]The claimant stated that he was offered the job of outlet representative orally but did not accept the offer. It was offered to Ms Eleanor Mereditis, who accepted. There was no evidence that this was an act of discrimination based on the claimant’s race or age.[118]The claimant said he was interviewed twice for the position of outlet representative in 2012/2013 but was not given the position because the decision had already been taken as to who should get the job, namely Ms Karen Smith. He said that he was interviewed by Mr Francois Landers, customer manager. From the claimant’s account there is no evidence that the decision not to offer him the job was based either on his age or race.[119]The claimant further stated that Mr Craig Alves-Veria applied for the position of outlet representative but the claimant was prevented from applying by Ms Braxall and he complained of age and race discrimination. This was in 2014. In the absence of a detailed account of Mr Alves-Veria’s capabilities, the job description when compared with the claimant’s capabilities, it is very difficult for this tribunal to make findings of fact in support of the claimant’s claim that he had been discriminated against because of his race and/or age.[120]The claimant said that he applied for the position of senior customer manager but the respondent has no record of any such application. Such a position was two levels above the claimant’s grade at band 6. Without further evidence the tribunal could not make any findings of fact in relation to this post and whether the decision maker was influenced by the claimant’s nationality and age.[121]The claimant told the tribunal that he had no concerns about Mr Penter’s conduct of the appeal. Both Mr Penter and Mr Snow stated, quite categorically, that their decision was not influenced by either the claimant’s race or his age.[122]In relation to Mr Horscroft, when he was given the additional responsibility of training, he was of a similar age to the claimant, namely he is two years younger than the claimant.[123]The above are the tribunal’s material findings of fact. Submissions[124]The tribunal heard submissions from the claimant and from Ms Quigley on behalf of the respondent. They both prepared written submissions and spoke to those. We do not propose to repeat their submissions herein but have taken into account what was said and the authorities referred to.The law
Conclusions
[127]The tribunal find that in relation to the reasons for the claimant’s dismissal they relate to conduct. We further find that the respondent had engaged in a reasonable investigation in relation to the allegations. Ms Basak’s investigation was detailed and in the course of which she interviewed the claimant. The claimant was given the opportunity to respond to the third allegation added as a result of his failure to attend the disciplinary hearing on 18 November 2015.[128]We are satisfied that Mr Cook had a genuine belief in the claimant’s guilt in relation to all three allegations. His view was that they did not constitute gross misconduct but nevertheless serious misconduct. They warranted final written warnings but having regard to the cumulative effect of the claimant’s conduct the decision was taken that he should be dismissed. It is not the role of this tribunal to put itself in the shoes of the reasonable employer. It may be that an employer possessed of the evidence before Mr Cook might have issued the claimant with a written warning overall, another might have treated the claimant’s conduct as gross misconduct and dismissed. All we can say is that the decision to terminate fell within the range of reasonable responses. Mr Cook took into account the claimant’s length of service as a mitigating factor. There was no evidence that the respondent had used PIPs as a tool to harass the claimant but had genuine concerns in relation to his performance. From the evidence available the claimant did fail to attend the hearing as he was notified of the time, place and date and that was reinforced during the conversation with Ms Basak. Accordingly the respondent was entitled to treat his failure to attend as failing to comply with a reasonable management instruction and was therefore a conduct issue. The respondent did not prevent the claimant from bringing his own union representative. The claimant did not identify a particular representative and was advised by Ms Basak that as far as the respondent was concerned there was not a recognised union but he could approach a representative of the Employee Forum or could invite a work colleague to attend.[129]The claimant has no concerns about the conduct of the appeal. We have, therefore, come to the conclusion that the claimant’s unfair dismissal claim is not well founded and is dismissed.[130]We have not made any findings of fact in support of the claimant’s claim that he had been discriminated against because of his Greek nationality or national origins or age. Accordingly, these claims are not well founded and are dismissed.[131]In relation to the respondent’s contract claim, the claimant acknowledged that the respondent is owed the sum of £1,155.16. The only issue is whether the respondent should be ordered to accept the sum of £200 from the claimant monthly to satisfy the claim. The tribunal does not have any powers in that regard. The parties can agree how the sum should be paid and can, if they so choose, ask the tribunal to make an order to that effect. The claimant, however, is ordered to pay the respondent the sum of £1,155.16.