Mr M Finnerty v St Mungo’s Community Housing Association: 3323551/2019
JUDGMENT
It is the Judgment of this Tribunal that the claimant claims in unfair dismissal and wrongful dismissal both succeed. A Remedy Hearing will take place by CVP before the Cambridge Employment Tribunal on 22 July 2021. A full day is allowed for that hearing to take place. REASONS pursuant to a request by Mr McCombie at the hearing[1]The claimant was employed by the respondent latterly as a Housing Management and Lettings Co-ordinator from 27 March 2000 until his dismissal purportedly by reason of gross misconduct, a summary dismissal which took place and was effective on 6 June 2019.[2]Before this Tribunal the claimant pursues a claim for unfair dismissal and a claim for wrongful dismissal added by way of an agreed amendment to his original claim which was added in June 2020. The respondent argues that the claimant was dismissed fairly and that the reason was conduct, they rely on the claimant’s gross misconduct. They also argue that this conduct amounted to a repudiatory breach of his contract of employment and that they therefore were entitled to dismiss him without notice.[3]The hearing was conducted by Cloud Video Platform (CVP). I had before me an electronic bundle and witness statements from the principal witnesses who gave evidence. They were the claimant and for the claimant a former colleague of his Diane Dinham. For the respondent I had witness statements from Regional Director Adam Rees who was the individual who conducted the disciplinary process and made the decision to dismiss and also from an Executive Director David Fisher who conducted the appeal which upheld that dismissal.[4]The dismissal arose out of an incident at a housing project which took place on 2 August 2018. The claimant had visited the project and was confronted by a resident who was in the process of being evicted for previously threatening to use a knife on a contractor. The resident wanted to confront the claimant about the decision to evict him. The incident took place at about 10am on the morning of 2 August. There was also a postman present who at the time was attempting to deliver mail.[5]In the bundle was an extract from the CCTV system at the project which showed footage from two cameras, one showing the outside of the front door of the building and the bin store nearby and one showing the inside of that front door inside the building and this included footage of part of the staircase and the hallway. The footage in the bundle ran for some 11 minutes. Mr Rees had the same footage in front of him at the disciplinary hearing and in fact it was the sight of the footage which prompted the respondent to pursue the disciplinary proceedings against the claimant as it was at variance with an incident report which the claimant had filed on the day.[6]Of great significance however is that no sound was available on the footage and therefore the context of the incident is incomplete. I will not seek to recount in detail the 11 minutes of footage which we have all viewed and I have watched on several occasions.[7]Essentially however, the postman attempted to deliver post and rang the doorbell as there was a parcel to deliver which he could not fit through the letterbox and which needed a signature. The claimant came to the door from an office down the hallway which is out of shot. At the same time or very closely associated with the claimant’s arrival the resident came down the stairs with his terrier dog possibly a Pitbull type breed. It was here that the claimant says he was confronted by the resident. He says the resident was shouting and swearing at him and threatening to stab him, cut him and kill him. The claimant also says that the resident was trying to sic his dog on him. None of this can really be seen in the CCTV footage as there is no sound, it just looks like there is a conversation, perhaps an animated one. In his letter of dismissal Mr Rees opines that the resident was trying to engage with the claimant but that the claimant seems uninterested. I accept the claimant’s evidence that he was subjected to a substantial and very threatening barrage by way of a verbal attack by the resident and this is partially borne out in the CCTV footage because the resident does appear to be in an agitated state. The claimant says he was bouncing about readying himself to attack. I accept that, I accept the claimant’s evidence on this point.[8]The claimant also knew that the resident had a history of threatening people with knives because that is why he was being evicted. The claimant quite reasonable feared for his life, he walked away out of shot then suddenly he appeared again and ran at the resident pushing him through the door and outside into the bin store. The resident did not seem to fall over for very long and was soon back up on his feet. The postman was still present at this time. Thereafter after the resident gained entry back into the property an altercation ensued and the CCTV shows the resident eventually pulling one knife from his waistband and then we later see him brandishing two knives and at various points he slashes at the claimant and tries to kick him. The claimant on two occasions picked up a fire extinguisher to defend himself during the course of the rest of the footage.[9]Ultimately and perhaps ironically it was the resident that called the police who attended and he was arrested. He was subsequently charged and convicted. The claimant was not charged with any crime. The claimant gave a statement to the police immediately after the incident which was in the bundle before me. It was not before Mr Rees at the time of the dismissal however it was before Mr Fisher who conducted the appeal. In it the claimant admits that he punched the resident referring to the charge and the push seen on CCTV. The claimant in evidence before this Tribunal confirmed that he was referring to the charge and the push in his police statement. He does not then reveal that in the incident form he fills in a little while later at the project which is a form produced by the respondent. He admits that.[10]So, it was on this basis and that failure that the disciplinary process ensued. Essentially there were two allegations against the claimant, the first was that he had charged at and pushed the resident and essentially initiated violence and the second was that he had misled the respondent. The dismissal letter cites these two allegations, the push or the punch on the resident described as an assault and the statement by the claimant that he had been unable to retreat to the office and lock himself in and call the police as he was being threatened with a knife by someone who had instigated the incident by threatening him with a knife.[11]The respondent says that these are not borne out by the CCTV footage. The respondent’s Mr Rees cites the respondent’s Disciplinary Policy & Procedure and the respondent’s Code of Conduct and he places great store by these two documents. He finds against the claimant on both counts in a lengthy dismissal letter. He takes into account he says a variety of mitigating factors including the claimant’s 20 years of unblemished service, the difficult circumstances of the incident, the fact that the resident was known to threaten people with knives, the fact that the claimant had to defend himself against an attacker ultimately armed with two knives and the fact that the claimant had dropped his phone and could not call the police. What he did not do was to hear any evidence from the postman.[12]Mr Rees admitted in evidence that the respondent had made a perfunctory attempt to contact the postman but had failed to follow up that attempt. In my judgment he also did not consider fully and properly, nor did Mr Fisher on the appeal just how differently the incident might have appeared if the CCTV had had sound attached. Both of these facts are in my judgment critical. Mr Rees was particularly swayed by the fact that the push on the resident was in breach of the respondent’s Code of Conduct. Ultimately, the claimant appealed and the appeal was heard by Mr Fisher who had some fresh evidence in front of him but he ultimately upheld the decision of Mr Rees and the dismissal of the claimant. The Law[13]The claimant makes two claims, his claim for unfair dismissal is governed by s.98 of the Employment Rights Act 1996 and it is for the respondent to show what the reason was for the dismissal, and that under s.98(2) it was a potentially fair reason for dismissal. In this case the respondent relies on conduct. In terms of whether it is appropriate to dismiss in those circumstances I have to look at s.98(4). S.98(4) tells me that it depends on all the circumstances including the size and administrative resources of the employers undertaking and I must determine whether the employer acted reasonably or unreasonably in treating that (the conduct), as a sufficient reason for dismissing the employee.[14]I am guided by some authorities in this respect, I am duty bound to consider what is known as the Burchell test pursuant to the case of British Homes Stores Ltd v Burchell [1981]. Essentially that is a three stage test and I have to determine whether in the circumstances and on the evidence before me the respondent held a genuine belief in the claimant’s guilt, whether they carried out in all the circumstances a reasonable investigation and whether ultimately that genuine held belief was reasonably held.[15]I am also guided by other authorities principally the case of Iceland Frozen Foods Ltd v Jones in that deciding whether a dismissal is fair or unfair under 98(4) I have to consider whether the decision to dismiss in the circumstances falls within a band of reasonable responses of an employer faced with that set of circumstances.[16]I must not substitute my own view as to what I would have done if I was faced with those circumstances but to consider whether an employer would have been reasonable in dismissing in those circumstances and therefore whether the decision to dismiss fell within a band of reasonable responses. Conclusions Unfair Dismissal[17]This has not been an easy case to decide and I consider that the respondent could have conducted a fuller investigation by seeking evidence from the only corroborating witness, that is the postman. They really should have tried harder to contact the postman and seek his evidence. That aside the investigation was perhaps all it could be in that they had considered the CCTV footage which was pretty much all they had before them other than the evidence put forward by the claimant. I am therefore inclined to agree that they passed the first of the two limbs of the Burchell test which is that they had a genuinely held belief pursuant to a reasonable investigation, but was it reasonably held? I think not. I do not think that it was sufficient to justify dismissal.[18]They should have taken into account the fact that had they heard the abuse and the very significant threats to the claimant from the resident the whole incident would have been properly contextualised. The actions of the claimant in running at the resident before he then produced two knives would be much more understandable in the context of the verbal abuse and threats that he was being subjected to.[19]It is important to remember that adherence to policies such as the Code of Conduct is admirable but note sacrosanct. Such a policy is only a guide. Policies such as the Code of Conduct are not be applied in a purely tick box manner. Mr Rees and Mr Fisher should have looked at the matter in the round. Every case turns on its own facts.[20]In the circumstances I consider the claimant’s reaction was understandable. His behaviour was not perfect and was not ideal. Another employee might have run into the office and locked the door – he did not. He ran at and pushed the resident. Yes, he did it before the resident had actually produced the knives but the resident had been threatening to produce knives and to cut him and to attack him, even kill him and the claimant was well aware that the resident had a history of threatening people with knives. So, he was right to be frightened for his life as ultimately that was proven to be the case as he was attacked by a man wielding two knives who had a history of violence.[21]As for his failure to replicate the police admission in the incident report and subsequently his failure to correct that, this also was not ideal. I accept however that he was so traumatised by the incident that he did not see the significance of filling in the form at the time. I can understand how he would feel that he had already given his account of the incident by giving a statement to the police and that that was enough. On that particular day he had probably suffered quite enough having had to deal with the attack by the resident. The police charged the resident who was convicted – they did not charge the claimant and they saw the same CCTV and knew of the push or punch. The claimant has subsequently and not surprisingly suffered from PTSD as a result of the incident and was off sick for some time prior to the dismissal.[22]The claimant did not behave ideally but in all the circumstances I do not consider that the decision to dismiss him falls within a band of reasonable responses of an employer faced with the circumstances with which they were faced. Perhaps a more appropriate sanction by the respondent would have been a warning or even a final written warning. He did not fully explain why he gave two versions of events, one to the police and one to the respondent and he had the opportunity to correct that and his reasons for not doing so were not wholly consistent. So, he is not blameless. Nevertheless in applying the Burchell test I find on balance that the respondent’s belief was not reasonably held. I also consider that the decision to dismiss does not fall within the band of reasonable responses of an employer faced with the evidence the respondent were faced with. I have not substituted my own view but looked at what a respondent would have done in those circumstances. For that reason, I find that the claimant’s claim for unfair dismissal succeeds. Wrongful Dismissal[23]I have considered all the authorities on wrongful dismissal and the fairness of the dismissal is of no consequence in a wrongful dismissal case. I do consider that the claimant behaved in a way which was a breach of contract but in my judgment it was not a sufficiently serious breach to amount to a repudiatory breach entitling the respondent to dismiss him without notice. His wrongful dismissal claim therefore also succeeds and he will be entitled to damages for the notice pay he would otherwise have received.[24]There will be a Remedy Hearing by CVP before me with a full day allowed on 22 July 2021. The claimant should produce a statement to be sent to the respondent and filed with the Tribunal by 28 February 2021 setting out his attempts to mitigate his loss since dismissal and if he was not able to mitigate his loss by finding other work explain why not. I have seen his Schedule of Loss where he launches into some explanation as to what has happened since but there will need to be witness statement to support that. I will hear arguments on contributory fault in respect of any compensation in the unfair dismissal claim on that day also. It is to be fervently hoped that the Remedy Hearing will not be necessary and the parties will be able to settle matters prior to the Remedy Hearing and that that date can be vacated.REASONS
[1]This matter came before me today as a remedy hearing pursuant to a full merits hearing which took place on 2 February 2021. At the conclusion of that hearing I gave judgment in favour of the claimant in both his claim in wrongful and unfair dismissal. I had before me today Mr McCombie of counsel who was instructed by the respondent and Mr Finnerty in person. I also had Cerys Duke HR Partner of the respondent and Julie Collins of the respondent who had provided a witness statement. I heard submissions from Mr McCombie and from Mr Finnerty, and Mr McCombie also briefly cross examined Mr Finnerty who had provided a witness statement for this hearing. I had before me various documentation sent through in a large file by those representing the respondent, most particularly I had in front of me a bundle specific to this hearing. I was taken through much of that bundle by Mr McCombie and during the course of the hearing was able to familiarise myself with its contents.[2]Firstly might I say I did not have in front of me what one could describe as a schedule of loss that was drafted in the usual format that we would expect to see in a tribunal such as this. The claimant is unrepresented and had produced a schedule of loss some time ago which talked in terms of claims for injury to feelings and did not address the usual factors that are included in an award made pursuant to an unfair dismissal claim. I accept that the claimant is unrepresented and therefore in the interests of justice it is necessary for the Tribunal to assist claimants in these circumstances where possible.[3]There are a number of unusual features about this particular remedy hearing which merit some comment. That usually in a remedy hearing the parties are locked into arguments concerning whether the claimant pursuant to a dismissal has discharged the duty to mitigate their loss by seeking other work and often by the time we get to a remedy hearing employees who have been dismissed and successful in unfair dismissal claims have actually already obtained fresh work and are continuing to earn. In this case we have a slightly unusual situation in that the claimant is very clear in making it absolutely plain both in the documents in front of me and in the evidence which he has given this morning that he has no intention of seeking other work pursuant to his summary dismissal unfairly as it turns out on the 6 June 2019 which of course led to this tribunal. He says the reason for that is that he has become a full time carer for his elderly mother who at the time of his dismissal was nearing 90 years of age and who’s health was in considerable decline. That situation has continued and her health continues to be in decline to the point where she requires a full time carer at the age that she is now which is 92. Mr Finnerty the claimant fulfils that role and is a full time carer and has no intention of seeking other work.[4]That brings an unusual flavour to consideration of the duty to mitigate. All claimants who are successful in both wrongful and unfair dismissal claims do have a duty to seek other work. They cannot simply sit back and put their feet up and expect losses to accrue for which they will then subsequently be compensated. It is a well-known feature of employment tribunals that we have to assess whether individuals have discharged that burden. It is also the case however on authority that that burden is not a particularly high bar and usually even attempts to find other work which have proved fruitless are sufficient to discharge that burden.[5]In this case of course no such attempts have been made so I have to consider very carefully when I think it would be likely that the claimant could have found work had he been looking. Mr McCombie very helpfully directed me to parts of the bundle where evidence which is not disputed or refuted by the claimant was of the availability of variety of jobs working in the same housing sector that the claimant had worked in for the respondent prior to his unfair dismissal. In cross examination Mr McCombie asked the claimant about experience that he had gained over 23 years of working in a particular sector, 19 of which he worked with this respondent. It is evident that the claimant had obtained a pretty broad skill set and experience which perhaps would have enabled him to apply not only for roles in the same sector but also roles in other areas.[6]I therefore have to crystal ball gaze to an extent and try and assess from the evidence that is in front of me when I think it would have been likely that the claimant could have gained meaningful employment had he been seeking to do so. I have taken into account the fact that the dismissal and the events which occurred before it which led to the dismissal had a very deleterious effect on the claimant and in fact at the time of his dismissal he was off sick as a result of the stress that he had suffered during the incident which had led to the disciplinary process and his subsequent dismissal. I also have to take into account the fact that the claimant is now 63 years of age and that that might affect his prospects in the work place.[7]Taking into account the evidence before me I think it unlikely that the claimant would have found similarly remunerated employment until a period of some time thereafter and taking into account the fact that part of this claimant’s claim relates to the notice period he would otherwise have received had he not been dismissed summarily I consider that a further 22.5 weeks after the expiry of his notice period is appropriate. That takes us up to the day a year before the full merits hearing of this matter. I therefore assess the period of loss in this case should run up to 2 February 2020.[8]I was also addressed by Mr McCombie on the issue of contributory fault under s.123 of the Employment Rights Act and in cases such as this we often have to look at contributory fault particularly where the dismissal that was subsequently found to be unfair was for misconduct reasons. In this respect I re-read my judgment and re-visited the CCTV footage. I reiterate the point that I made in my judgment that I think the CCTV footage is of limited use without the sound and I in my judgment I made it clear that I accepted Mr Finnerty’s evidence on what happened during the incident because the CCTV footage alone without the sound does not give any true impression of the level of intimidation Mr Finnerty was being subjected to at the time from the resident. I do however say in the judgment that I do not think that Mr Finnerty was entirely blameless and therefore I must consider whether I apply an element of contributory fault which will reduce the basic award and the compensatory award in the unfair dismissal claim in these proceedings. Having very carefully considered it and re-read my judgment and listened carefully to Mr McCombie I do think an element of contributory fault is appropriate here and I therefore propose to reduce both the basic and compensatory awards in the claimant’s unfair dismissal claim by 25%. Wrongful Dismissal[9]Turning therefore to the awards and dealing first of all with the wrongful dismissal award, that is essentially the failure of the respondent to give the claimant any notice, Mr McCombie agrees with me that even though at the time of his dismissal the claimant was only receiving sick pay it is clear from the legislation at s.86 and s.88 of the Employment Rights Act 1996 and it is commonly a matter of law that in such circumstances where there is a failure to pay the statutory notice then any claim for that statutory notice must be paid at the normal week’s pay rather than at the rate of statutory sick pay that the claimant might have been in receipt of at the time of the dismissal. Therefore it is a fairly easy process for me to make the calculation based on 12 weeks’ notice pay, based on the net pay of £423.92 a week multiplied by 12 which comes to £5,087.04.[10]There was also and this is agreed by Mr McCombie a loss of pension benefit of £53.33 per week and that multiplied by 12 comes to £639.96 so the total award for the wrongful dismissal claim in respect of which the claimant was successful is £5,727. Unfair Dismissal[11]Moving on therefore to the unfair dismissal claim and dealing first of all with the basic award, the calculations are also not in dispute and are before me and I am grateful for that. That the basic award has been calculated at £14,962.50 and I must apply to that the contributory element that I have assessed at 25% and that reduces that to £11,221.87.[12]Dealing then with the compensatory award there is one other aspect that I must deal with and that is the level of weekly pay and therefore loss suffered that I am going to assess in respect of the claimant. It is common ground that a claimant cannot have double recovery and therefore recover loss for the same period of time that he is being compensated for in a wrongful dismissal claim so therefore I must ignore the first 12 weeks post the dismissal and the compensatory award then will just run from the period after that through to the period I have assessed as being reasonable period in which it would have been difficult for him to find work that is up to 2nd February 2020 and I need to decide whether the weekly pay during that period of loss would be at statutory sick pay rates which is what the claimant was on at the date of dismissal or at the usual net weekly pay. I have considered this and I in my judgment find that the rate of weekly loss should be at the normal net weekly pay of £423.92. The reasoning behind this is that the claimant was off sick at the point when he was unfairly and wrongfully dismissed but he was off sick as a result of stress arising out of the incident in question which took place some time earlier, a couple of months before in fact. There is no evidence in front of that persuades me that he would still have been off sick until February 2020 and he should be compensated for the loss that he would have suffered between the end of that notice period and the 2nd February 2020. Now I have calculated that the 12 week period from the date of dismissal which is covered by his wrongful dismissal claim would have expired on 29 August 2019 and therefore the period to be compensated by the unfair dismissal compensatory award runs from 30 August 2019 through to 2 February 2020 which I think is a reasonable period of time. That is 22.5 weeks so it is less than 6 months beyond the 12 weeks’ notice and I think that is a reasonable period. I understand and accept that the hearing did not take place for another year but I am assessing the amount of loss up to 2 February 2020 as I consider that a reasonable period. So that is 22.5 weeks at £423.92, that comes to £9,538.20 and I have to apply the 25% contributory fault reduction to that and that comes to £7,153.65.[13]There is also the question of pension loss during that period and that is 22.5 weeks at £55.33 which comes to £1,244.92. I also apply the contributory fault element to that and that comes to £933.69.[14]Loss of statutory rights which has been put in his schedule of loss at £250 is much more commonly now assessed at £500 and I have to apply the contributory fault element to that, so that brings that down to £375.[15]So that is a total for the compensatory award running from 29 August 2019 through to the 2 February 2020 of £8,462.34 after the adjustment for contributory fault.[16]So taking the three figures in question and summarising:16.1 In the wrongful dismissal claim I make an award of £5,727.16.2 In the unfair dismissal claim that is broken down into two awards I award;16.2.1 a basic award of £11,221.87; and16.2.2 a compensatory award of £8,462.34. Making a grand total payable to the claimant by the respondent of £25,411.21.