Employment Judge OrdNot represented for claimantIn person for respondentDate 21 November 2022
JUDGMENT
The Claimant’s claim is struck out.
REASONS
Background
[1]This matter was listed for a Final Hearing (one day) to consider the Claimant’s complaint that he was unfairly dismissed by the Respondent.[2]Directions towards this Hearing were given on 24 March 2022. The case was originally listed to be heard on 29 July 2022 but was postponed due to a lack of judicial resource and re-listed for today.[3]Prior to today’s Hearing I was told that efforts had been made by the Tribunal Administration office and at the hearing I was told similar efforts had been made by the Respondent to contact the Claimant without success.[4]The Claimant did not attend today’s Hearing and despite the Tribunal waiting until 10:15 for the Claimant to attend or otherwise contact the Tribunal, no attendance took place.[5]In those circumstances, the Claimant has failed to actively pursue this claim and his claim is struck out. 23 November 2022 JUDGMENT on RECONSIDERATION 1. The Claimant’s Application for Reconsideration of the Judgment dated 23 November 2022 is granted. 2. The Judgment dated 23 November 2022 is set aside. Case Management Order 3. The Final Hearing of this case is re-listed to take place on 18 January 2024 at the Cambridge Employment Tribunal, sitting at Cambridge County Court, 197 East Road, Cambridge, CB1 1BA, to begin at 10am or as soon thereafter as the Tribunal is able to hear it. One full day has been allowed for the conduct of the Final Hearing. 4. The Claimant will bring to the Final Hearing an extra copy of the Final Hearing Bundle and his Witness Statement for use by the Tribunal. 5. The Respondent having failed to comply with the directions dated 24 March 2022 for the exchange of Witness Statements will not be permitted to call evidence at the Final Hearing without leave of the Tribunal conducting the Hearing.[1]This matter came before me to hear an Application for Reconsideration by the Claimant of the Judgment dated 23 November 2022. Case Number:- 3323250/2021.[2]On that day the Claimant’s complaint was struck out because the Claimant failed to attend the Final Hearing.[3]Subsequently the Claimant submitted an Application for Reconsideration on the basis that he had been unable to attend the Hearing due to a road traffic accident (he was not involved in the accident) which caused a traffic backlog / traffic jam. The Respondent failed to attend today.[5]I accepted what the Claimant told me, granted his Application for Reconsideration and re-listed the Hearing.[6]The Claimant told me that all steps for preparation of the Final Hearing had been complied with, except the Respondent had failed to disclose any witness evidence. In those circumstances I made an Order reminding the Respondent that he is unable to call any witness evidence without leave of the Tribunal having failed to comply with the directions of the Tribunal. 6 November 2023[1]A full merits hearing took place on 2 and 3 May 2024. I determined that the Claimant’s dismissal was procedurally unfair and delivered an oral judgment on 3 May 2024.[2]In that regard, reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing, or a written request is presented by either party within 14 days of the sending of this written record of the decision. However, I will set out a summary of the facts and conclusions as far as it is relevant and necessary for the remedy judgment.[3]There was insufficient evidence in relation to remedy before me on 3 May, and insufficient time to deal with it in any event. I therefore ordered the Claimant to provide the following ahead of a remedy hearing: 3.1. Records of DWP payments between September 2021 and September 2022 3.2. Universal Credit job search and application history between September 2021 and September 2022 3.3. Job search and application history between September 2021 and September 2022 for any employment/recruitment agency (e.g. Reed or Indeed) 3.4. Payslips and/or bank statements detailing any income from work between September 2021 and September 2022 3.5. A statement detailing his efforts to find a new job, with reference to the documents supplied above[4]I also invited the Respondent to provide details of any suitable jobs available during the period September 2021 to September 2022, if he wished to challenge that the Claimant had mitigated his losses.[5]The remedy hearing was listed for 3 September 2024.[6]I did not receive any documents ahead of the hearing, but the Claimant said he had sent a number of emails with the required documentation. These were located by the clerk and had not reached me because of an incomplete case number in the subject. Unfortunately, those documents did not represent the required information, and although I gave him some time to locate and send documents during the hearing, this still resulted in incorrect/incomplete information.[7]The Claimant assured me that he could provide the necessary information, and I determined that it was in the interests of justice that he be allowed a further opportunity to do this.[8]The remedy hearing was rescheduled for 26 September 2024, and I made the following orders: 8.1. “By 4pm on 16 September 2024, the Claimant must provide the Tribunal and Respondent with the following documents (if possible, these should be collated into one file, rather than spread across multiple emails): 8.1.1. Printout of Universal Credit history, for the period September 2021 – September 2022, of: 8.1.1.1. Job searches 8.1.1.2. Job applications 8.1.1.3. Interviews 8.1.1.4. Job offers 8.1.2. Printout of records from any external employment/recruitment agency (e.g. Indeed or Reed), for the period September 2021 – September 2022, of: 8.1.2.1. Job searches 8.1.2.2. Job applications 8.1.2.3. Interviews 8.1.2.4. Job offers 8.1.3. A statement detailing his efforts to find a job following dismissal, with reference to the documents he has provided.” Procedure, documents, and evidence heard[9]The following documents were provided in the original hearing bundle: 9.1. Screenshot of a Facebook post from the Claimant on 14 October 2021, stating: “Start my new job 25th can’t wait looking forward to new challenges and career”“Start my new job 25th can’t wait looking forward to new challenges and career” 9.1.1. In response to comments under the post, the Claimant indicated that the role was in recruitment 9.2. Screenshot of a Facebook post from the Claimant on 31 January 2022, stating: “Its not a bad job, get paid to be at the seaside” 9.3. Screenshot of a Facebook post from the Claimant on 31 January 2022, stating: 9.4. “Bit of dinner before work, not to shabby”[10]The following documents were provided by the Claimant on 4 June 2024: 10.1. Universal Credit payment records from November 2021 (assessment period 28 September – 27 October 2021) to March 2022 (assessment period 28 January – 27 February 2022); 10.2. Universal Credit payment records from June 2022 (assessment period 28 April – 27 May 2022) to December 2022 (assessment period 28 October – 27 November 2022); 10.3. Undated bank statements showing: 10.3.1. payments from DWP in April, May and June – the Claimant says this is in 2022; 10.3.2. Other payments from DWP with no indication of month/year 10.4. Undated bank statements showing payments from DWP in November – the Claimant says this is November 2021[11]The following documents were provided by the Claimant, during the hearing on 3 September 2024: 11.1. Bank statement showing £640 received from “wood street ligh ltd” on 11 February 2022; 11.2. Screenshot of Universal Credit journal entries from October and November 2021 11.3. Screenshot of Universal Credit journal entries from January and February 2022 11.4. Screenshot of Universal Credit journal entries from June to August 11.5. Screenshot of Universal Credit journal entries from January to June 11.6. Screenshot of Universal Credit journal entries from December 2022 and January 2023[12]The following documents were provided by the Respondent, during the hearing on 3 September 2024: 12.1. 19 screenshots of social media job posts for roles in the hospitality trade, during the year after dismissal, resulting from a search for: 12.1.1. “assistant manager job northampton” 12.1.2. “assistant manager job leighton buzzard” 12.1.3. “assistant manager job bedford”[13]The following documents were provided by the Claimant on 16 September 2024 13.1. Universal Credit journal entries showing: 13.1.1. A request on 6 September 2024 for proof of his job applications following my Orders; 13.1.1.1. A response the following day that this would be sent to Milton Keynes Job Centre 13.1.2. Various entries relating to jobs, which had all been deleted on 26 September 2022. Most had notes attached to them detailing specific actions that had been taken, but only some mentioned specific dates within the year following dismissal: 13.1.2.1. Motorserv delivery driver - “Applied for the above position, have interview Monday 04/04/2022” 13.1.2.2. Superviser Burton Group - ”Filled out online application, email my cv, had interview on the same day, attended interview on 19/08/2022 Waiting email to see if successful” 13.1.2.3. Assistant Manager Brewhouse - “Filled out online application form, have telephone interview 29/12/2021”[14]Additionally, the Claimant sent the following email: “please find attached the required information regarding my job search history dating from september 2021 to september2022, as you can see, i have for filled my obligation required by the job centre to look for jobs in the first 6 months of the position i am accustomed to work, after this time you can see several jobs have applied for in a position lower, this process consisted of myself going to my local job centre once a week and having meeting with my work coach and other employment departments of the jod centre this also included several job fairs and internet jobs site searching through Indeed. In total i have applied for over 25 plus jobs in this time as i was required to have applied for a minimum of 2 jobs evrey 4 weeks. I have enclosed a copy of my universal credit journal entries in these emails as to show i have contacted the relevant people to try and obtain a copy from themselves and the reply i received.”[15]The Claimant gave oral evidence at the hearing on 26 September 2024 (along with submissions which are detailed below) and was cross-examined by the Respondent. He stated: 15.1. His Indeed/Reed account had been deleted so he was unable to access the information within it; 15.2. He secured work in recruitment in October 2021, but did not start because it was in Northampton and the travel did not fit in with his childcare responsibilities; 15.3. He did some work in Great Yarmouth in early 2022, but was unable to sustain it because of travel time and caring responsibilities, and therefore only completed a couple of weeks; 15.4. He had not secured alternative permanent employment in the year that followed his dismissal[16]Additionally, on 14 October 2024, the Tribunal wrote to the parties in the following terms: "The Judge needs additional information from the Claimant to deal with the recoupment part of the remedy judgment (the part that has to be paid to the DWP in recognition of the benefits received). Within 14 days of the date on this correspondence, the Claimant must provide the following information: 1.Details of any benefits received before dismissal, whilst still employed. For example, Working Tax Credits, Child Tax Credits etc. or confirmation that were not in receipt of anything except their income from work. a.If the Claimant did receive any benefits they must also provide evidence of this from as close to the date of dismissal e.g. a letter from HMRC/DWP from August/September 2021, showing the benefit name, amount and frequency of payments. Alternatively, a bank statement from August/September 2021, showing receipt of any benefit(s) would be acceptable. 2.A full breakdown of the monthly Universal Credit (UC) elements after dismissal. The documents provided for the remedy hearing show a monthly figure of £1,030, including a standard allowance of £334.91. A screenshot of the other elements is needed, for example housing costs, tax credits etc. a.One example of the £1,030 monthly breakdown from some point between September 2021 and September 2022 is enough b.A breakdown of the month covering the assessment period when wages were received from the Respondent, and UC was adjusted accordingly, will also be needed cA breakdown of the month covering the assessment period when wages were received in February 2022 will also be needed If the Claimant needs more time to provide any of this information, they must contact the Tribunal as soon as possible before the end of the 14 days to request an extension and advise how much more time they will need. If no response or extension request is received within the 14 day period, the judgment will be determined with reference to the information that is already before the Judge."[17]No response was received from the Claimant on or before 28 October 2024. Relevant facts[18]The Claimant was employed by the Respondent from 7 March 2019, including the period prior to a TUPE transfer that took effect on 28 July 2021. He was suspended from work on 2 August 2021, and ultimately dismissed on 9 September 2021, when he was aged 4. The Claimant therefore had 2 full years years of qualifying service when he was over 41 years of age.[19]On 3 May 2024, I determined that the dismissal was procedurally unfair. The following aspects of the final hearing and judgment are relevant for the purposes of deciding the appropriate remedy: 19.1. The Respondent did not conduct a disciplinary hearing; 19.2. The Respondent did not investigate the company’s payment system to determine if payment had been made for the drinks the Claimant was alleged to have taken; 19.3. The Claimant did not provide the Respondent with any of his (or his partner’s) bank statements to evidence that payment had been made for the drinks the Claimant was alleged to have taken; 19.4. The Claimant did not provide any of his (or his partner’s) bank statements as part of the final hearing bundle[20]The Claimant’s claim form states that he was paid £797 per month and worked 35 hours per week [5]. That would equate to an hourly rate of £5.25, which would be below the National Minimum Wage (NMW)/National Living Wage (NLW) of £8.91 for the 2021/22 tax year. However, in the schedule of loss [S1] he states his hourly rate as £9.50 per hour.[21]The Claimant began receiving Universal Credit (UC) in November 2021, for the period from 28 September 2021. This included elements for the standard personal allowance (£324.24 monthly up to and including April 2022, and £334.91 thereafter) and for housing costs. There was no element for limited capability for work. It is not known if there was any other element (e.g. Child Tax Credits as the Claimant has three children) within the Claimant’s benefit.[22]In the 12 months since dismissal, the Claimant received a total of £10,976 in UC. This breaks down as: 22.1. £1,000 on 3 November 2021, for the assessment period 28 September – 27 October 2021; 22.2. £826 on 3 December 2021, for the assessment period 28 October – 27 November 2021; 22.2.1. The amount was adjusted to take account of money paid by the Respondent in relation to unpaid wages/holiday 22.3. £1,000 on 3 January 2022, for the assessment period 28 November – 27 December 2021; 22.4. £1,000 on 3 February 2022, for the assessment period 28 December 2021 – 27 January 2022; 22.5. £1,000 on 3 March 2022, for the assessment period 28 January – 27 February 2022; 22.6. £1,000 on 3 April 2022, for the assessment period 28 February – 27 March 2022; 22.7. £1,030 on 3 June 2022, for the assessment period 28 April – 27 May 2022; 22.8. £1,030 on 3 July 2022, for the assessment period 28 May – 27 June 2022; 22.9. £1,030 on 3 August 2022, for the assessment period 28 June – 27 July 2022; 22.10. £1,030 on 3 September 2022, for the assessment period 28 July – 27 August 2022; 22.11. £1,030 on 3 October 2022, for the assessment period 28 August to 27 September 2022[23]In early 2022 the Claimant worked for a brief period. He was paid £640. There does not appear to be any associated reduction in UC.[24]The Claimant was required, as a condition of his UC, to apply for 2 jobs each month. For the first six months of UC entitlement, he was only required to look for work at the same level as or above his previous position. Following this, he was expected to apply for roles more widely.[25]The Claimant met these requirements, and no sanction was ever applied by the DWP for failing to meet his commitments.[26]The Claimant was offered work in October 2021 but was unable to accept this because of the travel requirements and his caring responsibilities.[27]The Claimant did not secure alternative permanent work within the year that followed his dismissal. Law[28]Employment Rights Act 1996 28.1. Section 112 “The remedies: orders and compensation. ... (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126) to be paid by the employer to the employee.” 28.2. Section 118 “(1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of—(a) a basic award (calculated in accordance with sections 119 to 122 and 126), and(b) a compensatory award (calculated in accordance with sections 123, 124, 124A and 126).” 28.3. Section 119 “Basic award (1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by— (a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and(c) allowing the appropriate amount for each of those years of employment. (2) In subsection (1)(c) “the appropriate amount” means— (a)one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one, (b)one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c)half a week’s pay for a year of employment not within paragraph (a) or (b).” 28.4. Section 122 “Basic award: reductions ... (2)Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” 28.5. Section 123 “Compensatory award. (1)Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (2)The loss referred to in subsection (1) shall be taken to include— (a)any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b)subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal. ... (4)In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland. ... (6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”[29]Polkey v AE Dayton Services Ltd 1988 ICR 142, HL When assessing the compensatory award for unfair dismissal, Tribunals are entitled to consider whether a reduction should be made on the ground that the lack of a fair procedure made no practical difference to the decision to dismiss.[30]Nelson v BBC (No.2) 1980 ICR 110, CA, The Court of Appeal said that three factors must be satisfied if the tribunal is to find contributory conduct:• the conduct must be culpable or blameworthy• The conduct must have actually caused or contributed to the dismissal, and• it must be just and equitable to reduce the award by the proportion specified.[31]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 31.1. Regulation 3 “Application to payments and proceedings(1) Subject to paragraph (2) below these Regulations apply - (a) to the payments described in column 1 of the table contained in the Schedule to these Regulations, being, in each case, payments which are the subject of industrial tribunal proceedings of the kind described in the corresponding entry in column 2 and the prescribed element in relation to each such payment is so much of the relevant monetary award as is attributable to the matter described in the corresponding entry in column 3; and (b)to payments of remuneration in pursuance of a protective award.(2) The payments to which these Regulations apply by virtue of paragraph (1)(a) above include payments in proceedings under section 192 of the 1992 Act and, accordingly, where an order is made on an employee’s complaint under that section, the relevant protective award shall, as respects that employee and to the appropriate extent, be taken to be subsumed in the order made under section 192 so that the provisions of these Regulations relating to monetary awards shall apply to payments under that order to the exclusion of the provisions relating to protective awards, but without prejudice to anything done under the latter in connection with the relevant protective award before the making of the order under section 192. Duties of the industrial tribunals and of the Secretary of the Tribunals in respect of monetary awards (1) Where these Regulations apply, no regard shall be had, in assessing the amount of a monetary award, to the amount of any jobseeker’s allowance or any income support which may have been paid to or claimed by the employee for a period which coincides with any part of a period to which the prescribed element is attributable. (2) Where the industrial tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.(3) Subject to the following provisions of this Regulation it shall be the duty of the industrial tribunal to set out in any decision which includes a monetary award the following particulars - (a)the monetary award; (b)the amount of the prescribed element, if any; (c)the dates of the period to which the prescribed element is attributable; (d)the amount, if any, by which the monetary award exceeds the prescribed element.(4) Where the industrial tribunal at the hearing announces to the parties the effect of a decision which includes a monetary award it shall inform those parties at the same time of the amount of any prescribed element included in the monetary award and shall explain the effect of Regulations 7 and 8 below in relation to the prescribed element.(5) Where the industrial tribunal has made such an announcement as is described in paragraph (4) above the Secretary of the Tribunals shall forthwith notify the Secretary of State that the tribunal has decided to make a monetary award including a prescribed element and shall notify him of the particulars set out in paragraph (3) above.(6) As soon as reasonably practicable after the Secretary of the Tribunals has sent a copy of a decision containing the particulars set out in paragraph (3) above to the parties he shall send a copy of that decision to the Secretary of State.(7) In addition to containing the particulars required under paragraph (3) above, any such decision as is mentioned in that paragraph shall contain a statement explaining the effect of Regulations 7 and 8 below in relation to the prescribed element.(8) The requirements of paragraphs (3) to (7) above do not apply where the tribunal is satisfied that in respect of each day falling within the period to which the prescribed element relates the employee has neither received nor claimed jobseeker’s allowance or income support.” 31.2. Schedule – table relating to monetary awards “Column 1 Payment ... Payments under an award of compensation for unfair dismissal in cases falling under section 112(4) (cases where no order for reinstatement or reengagement has been made). ...” 31.3. Regulation 8 “Recoupment of Benefit (1) Recoupment shall be initiated by the Secretary of State serving on the employer a recoupment notice claiming by way of total or partial recoupment of jobseeker's allowance, income-related employment and support allowance, universal credit or income support the appropriate amount, computed, as the case may require, under paragraph (2) or (3) below. (2) In the case of monetary awards the appropriate amount shall be whichever is the less of the following two sums— (a) the amount of the prescribed element (less any tax or social security contributions which fall to be deducted therefrom by the employer); or (b) (i) the amount paid by way of or paid as on account of jobseeker's allowance, income-related employment and support allowance or income support to the employee for any period which coincides with any part of the period to which the prescribed element is attributable, or (ii) in the case of an employee entitled to an award of universal credit for any period (“the UC period”) which coincides with any part of the period to which the prescribed element is attributable, any amount paid by way of or on account of universal credit for the UC period that would not have been paid if the person's earned income for that period was the same as immediately before the period to which the prescribed element is attributable. ... (4) A recoupment notice shall be served on the employer by post or otherwise and copies shall likewise be sent to the employee and, if requested, to the Secretary of the Tribunals. (5) The Secretary of State shall serve a recoupment notice on the employer, or notify the employer that he does not intend to serve such a notice, within the period applicable, as the case may require, under paragraph (6) or (7) below, or as soon as practicable thereafter. (6) In the case of a monetary award the period shall be— (a) in any case in which the tribunal at the hearing announces to the parties the effect of its decision as described in Regulation 4(4) above, the period ending 21 days after the conclusion of the hearing or the period ending 9 days after the decision has been sent to the parties, whichever is the later; or (b) in any other case, the period ending 21 days after the decision has been sent to the parties. ... (8) A recoupment notice served on an employer shall operate as an instruction to the employer to pay, by way of deduction out of the sum due under the award, the recoupable amount to the Secretary of State and it shall be the duty of the employer to comply with the notice. The employer's duty under this paragraph shall not affect his obligation to pay any balance that may be due to the employee under the relevant award.(9) The duty imposed on the employer by service of the recoupment notice shall not be discharged by payment of the recoupable amount to the employee during the postponement period or thereafter if a recoupment notice is served on the employer during the said period.(10) Payment by the employer to the Secretary of State under this Regulation shall be a complete discharge in favour of the employer as against the employee in respect of any sum so paid but without prejudice to any rights of the employee under Regulation 10 below.(11) The recoupable amount shall be recoverable by the Secretary of State from the employer as a debt.(12) For the purposes of paragraphs (2)(b)(ii) and (3)(b)(ii), “earned income” has the meaning given in regulation 52 of the Universal Credit Regulations 2013.” 31.4. Regulation 10 “Provisions relating to determination of amount paid by way of or paid as on account of benefit (1) Without prejudice to the right of the Secretary of State to recover from an employer the recoupable benefit, an employee on whom a copy of a recoupment notice has been served in accordance with Regulation 8 above may, within 21 days of the date on which such notice was served on him or within such further time as the Secretary of State may for special reasons allow, give notice in writing to the Secretary of State that he does not accept that the amount specified in the recoupment notice in respect of jobseeker's allowance, incomerelated employment and support allowance, universal credit or income support is correct. (2) Where an employee has given notice in writing to the Secretary of State under paragraph (1) above that he does not accept that an amount specified in the recoupment notice is correct, the Secretary of State shall make a decision as to the amount of jobseeker's allowance, income-related employment and support allowance, universal credit or, as the case may be, income support paid in respect of the period to which the prescribed element is attributable or, as appropriate, in respect of so much of the protected period as falls before the date on which the employer complies with Regulation 6 above. (2A) The Secretary of State may revise either upon application made for the purpose or on his own initiative a decision under paragraph (2) above. (2B) The employee shall have a right of appeal to [the First-tier Tribunal]4 against a decision of the Secretary of State whether as originally made under paragraph (2) or as revised under paragraph (2A) above. (2C) The Social Security and Child Support (Decisions and Appeals) Regulations 1999 shall apply for the purposes of paragraphs (2A) and (2B) above as though a decision of the Secretary of State under paragraph (2A) above were made under section 9 of the 1998 Act and any appeal from such a decision were made under section 12 of that Act. (2D) In this Regulation “the 1998 Act” means the Social Security Act 1998. (3) Where the Secretary of State recovers too much money from an employer under these Regulations the Secretary of State shall pay to the employee an amount equal to the excess. (4) In any case where, after the Secretary of State has recovered from an employer any amount by way of recoupment of benefit, the decision given by the employment tribunal in consequence of which such recoupment took place is set aside or varied on appeal or on a re-hearing by the employment tribunal, the Secretary of State shall make such repayment to the employer or payment to the employee of the whole or part of the amount recovered as he is satisfied should properly be made having regard to the decision given on appeal or re-hearing.” Submissions[32]The parties made oral submissions, which are summarised as follows: Claimant[33]Losses were fully mitigated by meeting at least the minimum requirement for Universal Credit job searches and applications;[34]Jobs in Northampton were not viable because of travel time and caring responsibilities, including school runs;[35]The Respondent should have searched their till system for the Claimant’s payments, which would have resulted in a different outcome;[36]There was no contribution to the dismissal;[37]The Respondent failed to follow ACAS processes, and the maximum uplift should be applied. Respondent[38]Losses were not fully mitigated – several of the roles identified could have been applied for;[39]Travel to Northampton was reasonable, including by various train routes;[40]Even if a disciplinary hearing had taken place, the outcome would have been the same, or the Claimant would have been dismissed shortly after because of the volume of allegations against him.[41]The Claimant’s behaviour prior to dismissal, including during the investigation, was blameworthy and culpable – the compensatory award should be reduced by 100% to reflect this;[42]Failure to adhere to processes/ACAS was due to a lack of experience/naivety, and no/minimal uplift should be applied.
Conclusions
[43]Applying the facts to the law, I make the following conclusions: Basic award[44]As the Claimant was aged over 41 for each of the two full years he was employed by the Respondent, he is entitled to 1.5 weeks’ pay for each of those years. Compensatory award[45]As the remedy hearing took place more than 1 year after the dismissal, there is no separation between immediate and future loss. The maximum the Claimant would be entitled to is 52 weeks' pay.[46]The Claimant obtained a new job in early 2022, which lasted approximately two weeks. He did not find alternative permanent employment within the 52 weeks. Adjustments[47]The following categories of potential adjustment apply 47.1. Mitigation of losses: 47.1.1. Earnings 47.1.1.1. The amount received from the Respondent related to unpaid wages and holiday pay accrued prior to dismissal, so is not deducted. In any event, the amount of UC received had already been calculated accordingly – a further deduction would result in double recovery. 47.1.1.2. The £640 that the Claimant was paid in February 2022must be deducted from the compensatory award. No deduction of UC to reflect these earnings is apparent, so there is no double recovery. 47.1.2. Efforts to find a new job 47.1.2.1. The Claimant satisfied the minimum requirements of Universal Credit to apply for a stipulated amount of roles – he was never sanctioned for failing to meet his targets; 47.1.2.2. The Claimant applied for roles that were similar to those he had been in, and also broadened the search; 47.1.2.3. It was reasonable for the Claimant to limit the locations of his searches and applications to take account of the travel time and impact on his caring responsibilities. 47.1.2.4. The Claimant mitigated his losses as far as possible, and therefore no deduction to the compensatory award is appropriate. 47.2. Polkey: If a fair process had occurred, would it have affected when the claimant would have been dismissed? 47.2.1. The fair process would have required a disciplinary hearing following the investigation meeting that was held, so even if dismissal was still the outcome, the date that took effect would have been later. 47.2.2. However, it was not a complex case so this should not have had any significant effect on the dismissal date. What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal? 47.2.3. I note that although there were several allegations against the Claimant prior to suspension, his dismissal did not relate to the vast majority of those, and I previously determined that they weren’t sufficient reason for dismissal 47.2.4. However, the Claimant’s engagement with the Respondent about providing his bank records showing he had made payment for the drinks, was obstructive. Whilst it might be correct in principle that the Respondent could/should analyse their own payment records to confirm their position, it is an odd position to take if you have readily available information that can disprove an allegation. 47.2.5. On that basis, even if a formal disciplinary hearing had taken place, I am not confident that the Claimant would have taken the opportunity to source and provide the information that he says would have exonerated him in relation to the theft allegation. However, the Respondent may have been more likely to have carried out the relevant searches of their own systems if they had received this information. 47.2.6. Additionally, an independent hearing chair may have been more likely to have queried the absence of such information. Although I note that the Respondent wouldn’t have had the Claimant’s (or his partner’s) card details so would have been limited to searching for transactions at that till at around the time of the allegation, cross-referencing it to the CCTV (which may or may not have been accurately synchronised). 47.2.7. Taking everything into account, I determine that there is a 30% chance that the Claimant would still have been dismissed if a fair process had been followed. The compensatory award will therefore be reduced by that percentage. 47.3. ACAS uplift 47.3.1. The Respondent missed a critical part of the disciplinary process. This was unreasonable given that he had used the ACAS website, and the necessary information is easily available there. Additionally, he used template letters, including the investigation meeting invite that clearly referred to the next stage being a disciplinary meeting. 47.3.2. Having said this, I have no reason to believe that the failure was intentional. The Respondent was inexperienced and attempted to follow a proper process to the best of his abilities. 47.3.3. Taking everything into account, the appropriate uplift is therefore 10%. 47.4. Contributory conduct 47.4.1. Culpable or blameworthy conduct 47.4.1.1. The Claimant’s actions in going behind the bar to serve himself with drinks when not working was culpable conduct. I note that he asserted he had express permission to do this on that occasion, and that it was not uncommon more generally under previous management. However, there was no corroborating evidence of this before me. 47.4.2. Caused or contributed to the dismissal 47.4.2.1. The conduct certainly contributed to the dismissal as if it was not for those actions, the investigation itself may not have started. Even if it had, in relation to other allegations, this was by far the most serious. Furthermore, his stubbornness in refusing to provide bank records that could conclusively prove that he had in fact paid for the drinks, was a significant factor. 47.4.2.2. The Claimant’s attitude within the Tribunal proceedings supported the Respondent's account of how he acted within the parts of the disciplinary process that were carried out. Even at the remedy hearing, when asked by the Respondent about his failure to provide his bank records showing he had made payment for the drinks, his response was that it was for the Respondent to provide their till records to show that payment wasn’t made. As noted above, if he had conclusive evidence to disprove the allegation, I question why he wouldn’t provide this. ISimilarly, despite me explaining about mitigation of losses, and permitting the Respondent to provide details of available jobs in the relevant period to the Tribunal, the Claimant challenged the premise of this and took an obstructive stance to providing the necessary information. 47.4.3. Just and equitable reduction 47.4.3.1. As there is some overlap between the factors here and for the Polkey deduction, I have carefully considered if a deduction for contributory conduct is just and equitable. 47.4.3.2. I have determined that the Polkey factors set out above relate to the practical matter of the failure to provide available evidence. The Claimant further contributed to his dismissal by the initial actions that gave rise to the investigation, and with his obstructive stance and attitude. As such, a further deduction would not be penalising him twice for the same conduct. 47.4.3.3. Taking account of the nature of the contributory conduct both prior to investigation and during the process, it is just and equitable to reduce the compensatory award by 25%. Recoupment[48]As the Claimant received Universal Credit, the compensatory award is subject to recoupment.[49]In light of the conclusions above, the period to which this relates is 9 September 2021 to 8 September 2022. During the assessment periods from 28 September 202127 September 2022, the Claimant received £10,976 in Universal Credit.[50]The Respondent is required to not pay the claimant the sum the tribunal identifies, but to wait until the DWP recoups from them any benefits paid, with the remainder then being paid to the claimant by the respondent. Calculation[51]Basic award A weeks’ gross pay = (£9.50 x 35 hours) £332.50 x 1.5 weeks = £498.75 x 2 years as over 41 = £997.50[52]Compensatory award A week’s net pay = £297 Loss of earnings = 52 weeks’ pay x £332.50 = £15,444 Deductionsa. Earnings = £640 = £14,804b. Polkey deduction = 30% (£4,441.20) = £10,362.80c. ACAS uplift = 10% (£1,036.28) = £11,399.08d. Contributory conduct deduction = 25% (£2,849.77) = £8,549.31[53]Recoupment The amount the Claimant received from Universal Credit during the prescribed period exceeds the amount of the compensatory award. Therefore, the whole compensatory award is subject to recoupment.