Mr M Napper v The Best Connection Group Ltd: 3329510/2017

EMPLOYMENT TRIBUNALS

Case No 3329510/2017

Between

Mr M NapperClaimant

The Best Connection Group LtdRespondent

Before

Employment Judge Tynan

Mr D Maxwell (instructed by Counsel) for respondent

Date 5 March 2019

JUDGMENT

[1]The claimant was unfairly dismissed by the respondent.

REASONS

[1]The respondent is an employment business. The claimant worked for the respondent as a Sales Consultant at its Milton Keynes office. He commenced employment with it on 9 September 2014. His employment ended on 29 September 2017.

[2]The claimant presented a claim form to the Employment Tribunals on 19 December 2017. Although the claimant refers in his claim form to having acute anxiety and depression, his sole claim is that he was unfairly constructively dismissed by the respondent. The respondent denies that it breached the express or implied terms of the claimant’s contract of employment, alternatively that any breaches amounted to a repudiatory breach of contract, and it further denies that the claimant resigned as a result of any breach(es) of contract by it. Without prejudice to its various denials, the respondent contends that in the event the claimant is found to have been unfairly constructively dismissed any compensation awarded to the claimant should be reduced to that his conduct was a significant contributory factor in his dismissal. In his submissions Mr Maxwell stated that the respondent no longer contends that a Polkey reduction should be made i.e, to reflect that the claimant would or might have been dismissed by the respondent in any event.

[3]The claimant gave evidence in support of his claim. He made two written statements; one dated 7 March 2018, the second dated 10 July 2017 (though I assume intended to be dated 10 July 2018). He also submitted written statements by Mr Graham Wyllie and Mr Alexander Moore. Mr Moore attended tribunal and gave evidence but Mr Wyllie did not. Neither statement assists me in making findings and reaching a conclusion on the issues in these proceedings. Mr Wyllie and Mr Moore’s statements deal with what they claim was their respective experience of working at the respondent, but their evidence has no bearing on the issues that I have to decide in this case and as such I attach no weight to their evidence.

[4]On behalf of the respondent, Mr Maxwell objected to the claimant’s second supplemental statement being admitted in evidence. He referred to the Case Management Order issued on 5 January 2018 in which the parties had been warned that no additional witness evidence would be allowed at the hearing without the permission of the tribunal. I concluded that the interests of justice and balance of prejudice and hardship justified admitting the statement in evidence. The claimant had served his original witness statement at a time when he was unrepresented. The supplemental witness statement was subsequently prepared with the assistance of the Free Representation Unit and served on the respondent in July 2018 prior to a previously adjourned final hearing. As such, the respondent has known for some months what the claimant intended to say and a reasonable opportunity therefore to prepare for the final hearing and to address any additional matters in the supplemental statement. Aside from the lost opportunity to limit the claimant’s evidence, I could not identify any other prejudice to the respondent in admitting the supplemental statement, particularly given that it refers to various matters already raised by him in the course of his employment, including in his grievances.

[5]For the respondent, I heard evidence from Trudy Carr, the Branch Manager of the respondent’s Milton Keynes branch; her statement is dated 16 March 2018. There was no other witness evidence for the respondent, in particular I did not hear evidence from, nor was I provided with witness statements for, Mr Simon Thompson, a Senior Manager at the Milton Keynes office who was closely involved in various of the matters I have to consider, Mr David Schilling, a Director at the respondent who issued two disciplinary warnings to the claimant, or Mr Martin Recci, Group Director at the respondent, who determined a second grievance raised by the claimant and his appeal against a written warning.

[6]There was a single hearing bundle comprising 179 pages of documents. The issues in the proceedings

[7]As regards the claimant’s complaint that he was constructively dismissed, the claimant gave notice resigning his employment on 31 August 2017 (page 91 of the hearing bundle). It is a short letter in which the claimant wrote: “I feel that I am left with no choice but to resign in light of my recent experience regarding a fundamental breach of contract and a breach of trust and confidence. I consider this a fundamental breach of the contract on The Best Connection’s part.” Otherwise, the letter does not set out the specific matters relied upon by the claimant in resigning his employment. However, in the weeks leading up to his resignation, the claimant had submitted two grievances to the respondent and these provide important background and context. Naturally I also approach the issue having regard to the Claim Form, albeit the claimant is not legally qualified and therefore not experienced in drafting pleadings. Nevertheless, the Details of Claim at section 8.2 of the Claim Form were adopted by the claimant in his first witness statement and elaborated upon by him in his second supplemental witness statement.

[8]In his skeleton argument, Mr Maxwell identifies 14 separate complaints in section 8.2 of the Claim Form, namely:a. on 9 June 2017 the claimant’s manager said he did not want him in the work place because he had a negative effect on the team;

b. the respondent did not conduct a formal medical assessment of the claimant;

c. the claimant did not have a phased return to work following sick leave;

d. the claimant returned to the same job and targets;

e. the claimant was bullied and harassed for not meeting targets;

f. the claimant had to take holiday in order to attend counselling sessions;

g. on 19 June 2017, managers did not ask about / ignored the claimant’s health;

h. the respondent paid a parking fine incurred by the claimant rather than allowing him to challenge this;

i. on 28 June 2017, the claimant was required to sign to confirm that he understood the sickness absence procedures;

j. the claimant was required to attend disciplinary hearings in connection with time keeping and attendance;

k. the claimant’s disciplinary hearings were dealt with by managers whom he objected to;

l. the claimant’s grievances were not dealt with;

m. the claimant received disciplinary warnings; and

n. the claimant had clients removed. Whilst this provides a convenient structure within which the Claim can be considered, as noted above I also have regard to the contemporaneous documents and evidence around the time of the claimant’s resignation and obviously the parties’ oral evidence at tribunal in reaching a conclusion as to the matters that were in the claimant’s mind when he resigned his employment.

[9]In the course of her submissions, Ms Renaud invited me to find that the respondent caused the claimant to become ill in 2017 with anxiety or an anxiety related condition. That is not a finding I am in a position to make on the evidence available to me, nor indeed is it necessary for me to make such a finding given that the claimant’s complaints relate to the period after he became ill. He did not resign because he had become ill through work, but because of the respondent’s alleged treatment of him, including its alleged lack of concern for his health and well being when he returned to work following a period of sickness absence.

Findings

[10]On the respondent’s own evidence, the claimant had a satisfactory attendance record from September 2014, when he joined the company, to May 2017 when he became ill with anxiety related issues. As Ms Carr noted in her evidence, there were some issues with regards to the claimant’s attitude to his work, his focus and work output, but having regard to the personal records at page 104 of the hearing bundle, these issues were minor and must be seen in the context that he was working in a sales focused role and environment and that his performance overall was positive. With the benefit of hindsight, the final two observations in the personal records, dated July and October 2016, may have been an indication of the issues to come. Amongst other things, I note that time-keeping issues were identified in October 2016 and that the claimant’s time-keeping was discussed with him on 23 October 2016. The claimant’s initial sickness absence and return to work on 9 June 2017

[11]The claimant self-certified sick on 4 May 2017. When he subsequently returned to work his declared reason for absence was anxiety. The claimant had left his workplace at lunchtime on 3 May 2017 and had not returned in the afternoon. He was sufficiently unwell that he was unable to contact the respondent. Instead, his girlfriend messaged the respondent on 3 May and then again on 4 May to inform the respondent that the claimant was “in a bad place”. She referred to the claimant as suffering with depression and anxiety. I accept the respondent’s evidence that this was the first time it had been made aware that the claimant may have mental health issues. By a letter dated 4 May 2017 to the claimant, Mr Recci of the respondent reminded the claimant of the sickness absence reporting procedure. Whilst I can understand his preference that the claimant or his girlfriend telephone the office with an update rather than simply message the respondent, in my judgment the letter lends an impression that the respondent’s initial focus was on its own absence reporting procedures rather than the claimant’s health. Although Mr Recci did express concern for the claimant’s health he went on in the letter to request that the claimant either telephone Mr Thompson or Mrs Carr or that the claimant report to work by Monday 8 May 2016. The letter does not state in terms that the respondent might support the claimant in his recovery nor does it indicate that the company wished to learn more about any mental health issues which he was then experiencing.

[12]Facebook Messenger messages at page 94 onwards in the hearing bundle evidence that Ms Carr expressed concern for the claimant and a desire to see what she could do, “to ease his anxiety”.

[13]The claimant remained unwell and his ongoing absence was covered was by two statements of fitness for work, the second of which certified him unfit to work until 8 June 2017. At 12:49 am on 9 June 2017, the claimant messaged Ms Carr to say that he had a medical review that morning and would be in the office by 10:15 am or 10:30 am at the latest. Other than the timing of his message, sent late at night, there was nothing else to indicate that anything may be amiss. In the event, the claimant did not arrive at work until midday on 9 June 2017. His evidence at tribunal was that he was delayed at his Doctor’s surgery and that poor mobile reception at the surgery had prevented him from alerting the respondent. The respondent’s evidence, which I accept, is that the claimant was visibly distressed on arrival at work and appeared “dishevelled”. Mr Thompson understood the claimant to be saying that he was hearing voices in his head. The claimant’s explanation at tribunal is that his level of anxiety was sufficiently elevated that it was intruding into his thoughts and making concentration difficult. I accept that he was not paranoid and that he was not hearing voices in his head. However, I think it is highly unlikely that he was in fact fit to return to work on 9 June 2017.

[14]Given the claimant’s evident distress, Mr Thompson went to seek advice from Mr Schilling whilst Ms Carr remained with the claimant. She sought to distract him by making conversation about his family. When Mr Thompson returned he suggested to the claimant that he did not appear to be fit for work. In my judgment that was, in the circumstances, a reasonable suggestion for him to make. The claimant alleges that Mr Thompson told him he did not want him there because he would have a negative impact on the team. Although Mr Thompson did not give evidence, Ms Carr denied that this had been said. I prefer Ms Carr’s account. I think the claimant’s perception and recollection of what was said is likely to have been impacted by his distress and elevated anxiety. Faced with an employee who had arrived at work at least one and a half hours later than expected, following a five week absence, who appeared dishevelled and in a heightened state of anxiety, and was thought to be reporting voices in his head, Mr Thompson reasonably suggested to the claimant that he return to see his GP, explain how he was feeling and secure more information about a possible phased return to work.

[15]During his meeting with Mr Thompson and Ms Carr on 9 June 2017, the claimant also told them that he was attending counselling sessions on a Monday morning and that he wished these sessions to continue; meaning he would effectively be unable to work on a Monday morning if the counselling sessions continued. Whilst it may be that some employers would grant their staff paid leave to attend counselling, there is no statutory right to paid leave in such circumstances. Mr Thompson and Ms Carr did not in my view act unreasonably when they told the claimant that he would have to take holiday or unpaid leave in order to attend the sessions. There is no evidence before me that the claimant was treated differently to other staff in this regard.

[16]The claimant was not referred by the respondent for an occupational health assessment, or any other medical assessment, by the respondent’s nominated specialist. However, the claimant had been absent from work for a relatively short period of time and there was no immediate indication that he was suffering with a long-term condition, even if his appearance and behaviour on 9 June gave cause for concern. On balance, I consider that the respondent acted reasonably at that point in time in relying upon the claimant to make information available through his doctor and to keep the respondent informed as to how his condition was progressing.

[17]The claimant texted Ms Carr at 3:16 pm on Friday 9 June 2017 to say that his doctor would not provide a further sick note and indeed that his doctor had suggested he speak with Acas. This may have prompted the claimant to begin to believe that the respondent was obstructing his return to work. It is unfortunate in a case in which the claimant believes the respondent was not sufficiently concerned for his health and welfare that he criticises Mr Thompson for responding to his evident distress by encouraging him to see his doctor.

[18]It seems that the claimant and Mr Thompson spoke again at some point after the claimant had seen his doctor. The claimant emailed Mr Thompson at 6.45pm on 9 June 2017 and referred in his email to a telephone conversation during which he alleged that Mr Thompson had said he would have to return to work on his normal full-time hours rather than on a phased return and that he would also be expected to work to full capacity with the same targets. Mr Thompson did not give evidence and accordingly I have not had the benefit of hearing his account of that conversation. What I do have is a copy of an email from Mr Thompson to the claimant dated 12 June 2017 at page 46.2 of the hearing bundle. In that email Mr Thompson referred to the fact the claimant had returned to work without a Fit Note or anything else from his doctor on 9 June 2017. He wrote, “therefore you were deemed to be fit to work, doing your usual job and responsibilities and hours”. That supports the claimant’s account of what was said. The overall tone of Mr Thompson’s email of 12 June is hostile and aggressive, and I find that it reflects Mr Thompson’s hostility and aggression when he and the claimant spoke that afternoon. It is not the sort of communication I would expect an employer to send to a member of its staff, certainly not to an employee who has just returned to work following an extended period of sick leave in connection with possible anxiety and depression. It is unclear what triggered this change of attitude on Mr Thompson’s part. The email evidences little or no concern for the claimant and was written just three days (one working day) after Mr Thompson had observed the claimant to be distressed, dishevelled and apparently hearing voices in his head. Events between 9 and 28 June 2017

[19]The claimant arrived at work on 12 June 2017 at 1:15 pm, having attended his counselling session in the morning.

[20]Ms Carr met with the claimant on his return to the office, enquired how he was feeling and preceded to discuss his plans for the day. Her evidence was that she set a reduced target for the claimant so that he would not be overwhelmed and that she took other steps to ensure that the claimant felt included on his return. Given Mr Thompson was emphatic in his email earlier that day that the claimant would return to work on his full duties and was deemed fit to perform his usual job and responsibilities, I am doubtful that a reduced target was in fact set as Ms Carr suggests.

[21]The following day, on 13 June 2017, the claimant was late for work.

[22]On 14 June 2017, Mr Thompson and Ms Carr met with the claimant at his request. At the meeting the claimant produced a Fit Note from his doctor dated 13 June 2017 that recommended a two-week phased return to work (page 47 of the hearing bundle). It is not clear why the doctor had not provided this on 9 June 2017. The claimant’s evidence is that he was told by Mr Thompson this was just a recommendation but that the respondent did not have to accept it. Whilst that would be consistent with Mr Thompson continuing to be hostile towards the claimant, I note that Ms Carr’s record of the meeting (in an email to Mr Thompson, copied amongst others to Mr Schilling) is that when the claimant had handed the Fit Note to Mr Thompson he had said, “I know you are not going to accept this”. In which case the available contemporaneous evidence is that whilst the claimant anticipated that Mr Thompson would not agree a phased return, Mr Thompson did not say that. On the other hand, Ms Carr’s record of the meeting indicates that there was no discussion of a phased return during the meeting notwithstanding the doctor’s clear recommendation of such.

[23]On 15 June 2017, the claimant was 15 minutes late for work and Ms Carr asked him whether there was a reason he was late. He replied, “no, not really”. His response was unhelpful and indeed passive aggressive. It was necessary for Mr Thompson to call the claimant to remind him of the procedure to be followed if he was going to be late. I accept Ms Carr’s evidence that his behaviour that day was felt to be disruptive, in that he was seen to spend time on his personal mobile phone rather than making work related calls. At some point, the claimant left the office stating he was going home as he felt sick.

[24]On 16 June 2017, the claimant went to hospital with chest pains. The likely explanation is that he was experiencing ongoing acute anxiety which was manifesting itself in the form of physical symptoms. The respondent was unaware of this at the time. When the claimant returned to work the following day, Ms Carr asked him if he was all right but did not probe further. Her evidence was that she did not wish to raise his anxiety levels or upset him.

[25]On 19 June 2017, the claimant came to work wearing shorts. I accept Ms Carr’s evidence that she does not consider shorts, even business attire shorts, to be appropriate office attire and accordingly that she sent the claimant home to change. Ms Carr was consistent in her treatment of the claimant and I am satisfied that she was not seeking to punish the claimant for his absence or his time-keeping issues or reacting to his request for a phased return to work. Instead, she was simply applying a common standard of office attire. In the event, the claimant was away from the office for over one hour, although his home was approximately just 10 minutes away from the office.

[26]One has to be careful not to judge a situation with the benefit of hindsight, but it seems to me that there were various indications that the claimant was unwell and struggling.

[27]Mr Thompson emailed the claimant at 4:02 pm on Monday 19 June 2017. In his email he stated, “We would like to support you with the recommendation from the doctor that you undergo a phased return to work”. He asked the claimant to “let us know your proposal for a phased return” and whether he would be fit to work until such a plan was agreed. Mr Thompson might have managed the situation more proactively, for example by meeting with and speaking to the claimant rather than simply sending the claimant an email. I appreciate that the Fit Note did not suggest the form that any phased return might take, but in my judgment it was incumbent upon Mr Thompson/the respondent to speak with the claimant and to identify and put in place a phased return. Instead, Mr Thompson’s response seemed to place the responsibility back with the claimant. In particular it was unhelpful for Mr Thompson to ask the claimant whether he was fit to return pending any agreement on a phased return in circumstances where the Fit Note itself clearly indicated the need for a phased return from the outset. And of course, by 19 June, several days had elapsed since the doctor’s recommendation of a two-week phased return.

[28]The following day, 20 June 2017, the claimant was five minutes late for work. Once again, he offered no explanation when Ms Carr asked him why this was.

[29]The claimant was on annual leave on 21 and 22 June 2017. This leave was granted to him at very short notice. There is some suggestion that the claimant may not have been entirely straightforward with the respondent as to the reasons why he wished to take leave at short notice. However, it is not necessary for me to make specific findings in this regard. I simply note that Mr Thompson granted his request even though the respondent’s policy is that holidays should normally be requested four weeks in advance.

[30]At 5:57 am on Friday 23 June 2017, the claimant sent a text message to Ms Carr to inform her he would not attend work as he had food poisoning. The respondent does not seek to suggest that this was not genuine, but equally the claimant accepted at tribunal that it could have given the impression that it was a result of over indulging on his part during his two days off.

[31]The claimant was absent from work again on Monday 26 June 2017 but did not report his absence or return Ms Carr’s calls. The following day, 27 June 2017, he had another day of pre-booked leave. On 28 June 2017 the claimant messaged Ms Carr at 9 am stating that he had just woken up. His start time was 8 am and he arrived at work at 10:10am.

[32]Having returned to work on 9 June 2017 following a five week sickness absence, the claimant’s attendance over the following 14 working days may be summarised as follows:32.1 he failed to attend until midday on his first day back;

32.2 he took a half-day on the second day;

32.3 he had unexplained time-keeping issues on the third, fifth and eighth days;

32.4 he was perceived to be disruptive on the fourth day;

32.5 he failed to attend work on the sixth day;

32.6 he had to be sent home to change his clothes on the seventh day and was then absent from the work place for an extended period of time;

32.7 was on annual leave on the ninth and tenth days at short notice;

32.8 he was sick on the eleventh day;

32.9 he was absent on the twelfth day without explanation and could not be contacted;

32.10 he was on leave on the thirteenth day; and

32.11 he was over two hours late to work on the fourteenth day.

[33]On any reasonable view, even allowing for the fact he had been absent for five weeks with anxiety, this was an unsatisfactory state of affairs and one which any employer would find challenging to manage and would want to raise with an employee. On the other hand, the respondent was aware that the claimant had been unwell and, if it had reflected on the matter, might also have taken into account that the doctor’s recommendation of a phased return to work had still not been progressed. There is no indication from the documents in the hearing bundle that the respondent was giving active thought to whether the claimant’s pattern of behaviour might be connected to his mental health issues.

[34]Ms Carr and Mr Thompson spoke with the claimant on 28 June 2017 when he came into work to explain the company’s procedure with regard to lateness and absence. He was required to sign a short note that documented the company’s expectations of him, namely that he (rather than someone on his behalf) would call, not text, Ms Carr between 7.00am and 7:30 am on each day of sickness and update her again at the end of each working day between 4.00pm and 4.30pm. The claimant signed the note to confirm that he understood the respondent’s requirements and that he would adhere to these. They differed from the reporting requirements at clause 9 of his terms and conditions of employment (page 34 of the hearing bundle). I accept that claimant’s evidence that Mr Thompson stood up during this meeting, possibly over the claimant or in a way that gave that impression, and stated more than once that the claimant was to sign the note, and I also accept the claimant’s evidence that he perceived this as threatening.

[35]As set out above, whilst the respondent can be criticised for certain aspects of how it managed the claimant, he has failed to substantiate his complaint that after he returned to work on 9 June 2017 he was bullied and harassed for not meeting his targets. Likewise, I am not persuaded that Ms Carr did not speak to him or that she excluded him from general conversation within the office, as he alleges, and I reject the allegation at paragraph 6.3 of the claimant’s supplemental witness statement that she laughed at him in a nasty way. His evidence on these aspects did not hold up under crossexamination. The claimant was unable to substantiate his claim that Ms Carr and another member of the respondent’s staff would sometimes leave the office in the middle of the day for hours to go to lunch or to go shopping. I prefer Ms Carr’s evidence that she is someone who rarely takes her full lunch entitlement. She struck me in her evidence as someone who takes her job responsibilities particularly seriously and that she seeks to lead by example, setting high standards for herself and others. I conclude she may have become a little wary in her dealings with the claimant, but do not find that this translated into silence or a lack of engagement with the claimant. I also accept Ms Carr’s evidence that she applied the respondent’s bonus/commission rules consistently in relation to the claimant, in the same way that she was consistent in terms of her expectations of the claimant regarding his office attire. And I accept Ms Carr’s evidence that the respondent’s directors considered its relationship with DHL Cadburys to be insufficiently profitable to warrant time and resource being devoted to the account; accordingly, I do not uphold the claimant’s complaint in paragraph 6.1 of his witness statement that her instruction that he was not to place candidates at DHL evidences that she was seeking to sabotage his performance. Under cross-examination at tribunal the claimant also failed to substantiate his other allegations at paragraph 6.1 of his witness statement. I do not accept that Ms Carr sought to take the credit for a lead generated by the claimant in August 2017 or that Ms Carr instructed the respondent’s other staff not to assist him with bookings and to avoid his clients. The first disciplinary proceedings and grievance

[36]On 29 June 2017, the claimant was 20 minutes late for work. He had not messaged Ms Carr to say he would be late or to explain the reasons why he was late. As a result, the respondent concluded that it should initiate formal disciplinary proceedings.

[37]I have noted already that the respondent had identified time-keeping issues in 2016 and find that these were managed at that time through informal feedback. I am satisfied that it was decided to manage the issues more formally on this occasion because the claimant’s pattern of absences and poor time-keeping was becoming unpredictable and more difficult to manage.

[38]The disciplinary hearing was scheduled for 30 June 2107. That allowed the claimant less than one day in which to prepare for the meeting. In my judgment that was unreasonable and the claimant should have been given greater prior notice of the hearing, particularly in circumstances where the letter stated that the outcome could range from a verbal warning all the way up to dismissal (even though, in the event, that was not the disciplinary penalty that was imposed). Furthermore, whilst the letter stated that the company’s concerns related to the claimant’s time-keeping and attendance, his failure to follow company procedures and his general attitude, no further details of these three matters were provided in the letter. I am critical of the way in which the respondent handled the matter, which was not in accordance with the Acas Code of Practice on Disciplinary and Grievance Procedures. Paragraph 9 of the Code states that any notification of a case to answer should contain sufficient information about the alleged misconduct or poor performance to enable the employee to prepare to answer the case at a disciplinary hearing. The respondent could and should have summarised the time-keeping and attendance issues, identified the relevant procedures that were not being adhered to, and summarised the respects in which the claimant’s general attitude was said to be unacceptable. As set out below, the claimant raised this as an issue in correspondence with the respondent and he reiterated his concerns in section 8.2 of Form ET1 on the continuation sheet (page 13 of the hearing bundle). I conclude that it was a factor in his resignation.

[39]The claimant attended work only briefly on 30 June 2017 when he handed Ms Carr two letters, one addressed to Mr Schilling and the other addressed to Ms Carr and Mr Thompson. The former was a letter of grievance. Having handed her his letters he told Ms Carr that he was going home. She offered to bring forward the disciplinary hearing but he told her that the letter addressed to herself and Mr Thompson was his response to the disciplinary issues. In her witness statement Ms Carr describes the claimant as “very agitated and shaky” on 30 June 2017.

[40]In his letter to Ms Carr and Mr Thompson the claimant sought to address the three issues of concern contained in Mr Schilling’s letter of 29 June 2017. For the first time the claimant stated that his time-keeping issues may be connected to a change in medication that had been prescribed for his anxiety. He was also critical of the respondent for not contacting him on the morning of 16 June 2017 when he had failed to arrive at work; his letter infers that the negative feelings that the lack of contact generated in him may have led to him to go to hospital with chest pains and breathing problems. The claimant indicated, quite properly in my view, that he could not address the allegation that he had failed to follow company procedures until he knew what procedures were being referred to. He may have surmised that it was the absence reporting procedure, but he could not be expected to speculate, he was entitled to know the respondent’s specific concerns.

[41]Interestingly, the claimant did not take the same position regarding his alleged general attitude. On the contrary, he seems to have accepted that there was poor attitude on his part, but attributed this to Ms Carr and Mr Thompson’s poor management of him. Whilst Mr Thompson’s frustrations may have manifested in some anger and hostility towards the claimant, I do not accept that Mr Thompson or indeed Ms Carr were pressuring the claimant to leave.

[42]In his letter of 30 June, the claimant also said there was “unlawful discrimination” in the handling of his return to work and a failure to make reasonable adjustments (though there is no such claim before the tribunal). He also disclosed, for the first time, that he had experienced suicidal ideation.

[43]Whatever criticisms might be made of the respondent, it would be unfair for the claimant to suggest that the respondent was responsible for the fact he felt suicidal on his return to work. I accept that the claimant did feel suicidal on his return to work in early June (even if he had not disclosed this to anyone at the respondent at the time) and, whether or not this was fair on the respondent, that by 30 June he believed the suicidal feelings he had experienced were linked to what he genuinely perceived to be his poor treatment by the respondent. I accept that he believed he had been shown little care or support by the respondent. I am in no doubt that this would have been a very distressing period for the claimant, but the fact he was suffering acute anxiety and suicidal ideation may go some way to explain why he perceived certain events and interactions with Mr Thompson and Ms Carr as he did. But, as he accepted to an extent when questioned by Mr Maxwell, that does not mean his perception was necessarily always wellfounded.

[44]The claimant’s grievance letter to Mr Schilling includes many of the matters referred to in the claimant’s Form ET1, albeit fleshed out with a little more detail and obviously limited to events up to the date of the grievance (pages 57 and 58 of the hearing bundle). The claimant’s letter contains various proposals for addressing his grievances, including that he would start work at 10 am on the Tuesday, Wednesday and Thursday of the following two weeks whilst he adjusted to the medication that was causing him to be drowsy and to struggle to wake in the mornings. He additionally asked not to work on Fridays until further notice though his letter did not say whether this request was connected to his health issues. The claimant also confirmed that he would agree a severance and set out his proposals in this regard.

[45]Having left the office on 30 June, the claimant submitted a new Fit Note covering the period 30 June to 7 July 2017. The stated reason for absence was anxiety symptoms. The disciplinary hearing was re-scheduled to 7 July 2017, namely the day the claimant was expected to return to work.

[46]The disciplinary hearing on 7 July 2017 was conducted by Mr Thompson, with Ms Carr present to take notes. I am critical of the respondent for allowing Mr Thompson and Ms Carr to conduct the hearing in circumstances where there was an outstanding grievance by the claimant regarding their alleged treatment of him. Whether or not the grievance was ultimately well founded, the claimant’s grievance concerns directly touched upon the issues in the disciplinary proceedings and in my judgment, should have been investigated and addressed by the respondent before it could be satisfied that it was appropriate for Mr Thompson to deal with any disciplinary concerns or for Ms Carr to act as a note taker at any hearing. The claimant does not state in terms in his Form ET1 that he resigned in response to this, but, his letter to Mr Thompson and Ms Carr concluded with him objecting to their involvement and stating that the disciplinary hearing should be conducted by someone impartial. I find that the respondent’s handling of the hearing on 7 July 2017 was a factor in the claimant’s subsequent resignation.

[47]The outcome of the hearing on 7 July 2017 was that the claimant was issued with a verbal warning. The allegations were upheld though, as with the disciplinary hearing invite letter, the respondent’s letter of 7 July which confirms that the claimant was being issued with a verbal warning contains no details of the respondent’s findings on the three areas of concern. The warning was stated to remain live for twelve months. The respondent’s disciplinary procedure (page 53 of the hearing bundle) does not indicate how long any disciplinary warning will normally remain live.

[48]Mr Schilling did not meet with the claimant to discuss his grievance though Ms Carr’s evidence at tribunal was that Mr Schilling spoke with her about the matter. Again, the matter was not handled in accordance with the Acas Code of Practice on Disciplinary and Grievance Procedures. Paragraph 33 of the Code states that employers should arrange a formal meeting with an employee to discuss their grievance.

[49]The respondent’s case is that a detailed decision on the claimant’s grievance was issued on 11 July 2017. However, Mr Schilling did not attend tribunal to give evidence and there was no written statement from him. Ms Carr could not give evidence as to when Mr Schilling’s letter had been sent. It was suggested to the claimant during cross-examination that he was not opening his post. I prefer the claimant’s evidence that he stopped opening his post for a few days at most in July 2017 (I note for example that he attended a disciplinary hearing on 27 July in response to a letter sent to him on 24 July 2017). I find that he only received Mr Schilling’s letter of 11 July on 25 August 2017 at the same time he received a letter dated 24 August 2017 from Mr Recci in response to his second grievance and his appeal against a further disciplinary warning. I think the most likely explanation is that the respondent realised on or around 24 August 2017 that the 11 July 2017 grievance outcome letter had not been sent and that this was the result of an administrative oversight on its part. However, having made a genuine error, I find that the respondent has subsequently improperly sought to suggest that the letter was sent to the claimant on or around 11 July 2017 when in fact it is aware it was not. Events after 7 July 2017

[50]The claimant’s conduct and performance at work continued to be a matter for concern after 7 July 2017. He was absent from work on 13 and 14 July 2017 but did not make contact with the respondent to advise it that he was ill, nor did he provide a fit note in respect of these absences on his return to work. In her witness statement, Ms Carr refers to the claimant additionally being absent on the morning of Monday 10 July 2017; however, that would have been his regular counselling session.

[51]I can understand and accept that Ms Carr struggled to know how to manage the situation, not least given the claimant’s grievances about her. In the event, Mr Schilling wrote to the claimant on 14 July 2017. The respondent might have instigated further disciplinary proceedings given that the absences were so soon after the claimant had been issued with a verbal warning. Instead, Mr Schilling informed the claimant that the company was very concerned for his welfare and that they had tried to phone his mobile number but it gave a disconnected tone. Mr Schilling asked that the claimant either contact Ms Carr or report for work by midday on 17 July. Notwithstanding Mr Schilling’s apparent concern for the claimant, his letter concluded: “Failure to do so will lead me to believe, and presume, that you have resigned your position.” (page 67 of the hearing bundle). Whatever the frustrations and challenges of managing the claimant, I do not consider it was appropriate to write to the claimant in those terms.

[52]The claimant failed to report to work on 17 July 2017. Ms Carr’s evidence was that comments were starting to be made by other members of staff who felt, rightly or wrongly, that the claimant was coming and going as he pleased. I accept Ms Carr’s evidence that staff morale was being affected, though equally they would not have known the extent of the claimant’s health issues or that he had previously felt suicidal. The second disciplinary proceedings and grievance

[53]On 18 July 2017, Mr Schilling wrote to the claimant inviting him to attend a further disciplinary hearing at 2:30 pm on 24 July 2017. He confirmed that Mr Thompson and Ms Carr would “also” be in attendance. Certainly as far as the claimant was then concerned, his grievances in relation to them were still outstanding. Mr Schilling’s letter was based upon his previous disciplinary hearing invite letter, though on this occasion the respondent’s specific concerns were set out in the final paragraph of his letter. The claimant was provided with a copy of the respondent’s disciplinary code. As on the previous occasion, he was not provided with any statements or other evidence in support of the respondent’s concerns, consistent with what I have already described as a lack of robustness in the respondent’s approach to disciplinary and grievance issues. In the event, the disciplinary hearing did not go ahead as Mr Schilling’s letter coincided with a short period during which the claimant had not been opening his post. The disciplinary hearing was therefore adjourned to 27 July 2017.

[54]The hearing on 27 July 2017 was chaired by Mr Thompson, with Ms Carr acting as a note taker. Under cross-examination Ms Carr acknowledged that her and Mr Thompson’s presence on 27 July could “potentially” be perceived as biased and unfair, though she was unaware that the claimant had not received a response to his outstanding grievance. Mr Schilling was not present on 27 July notwithstanding his letter of 18 July had suggested he would be. When asked by Mr Thompson why he was absent on 13 and 14 July 2017 the claimant said he had Borderline Personality Disorder, had not felt his usual self when he awoke and felt for the safety of others. The meeting minutes kept by Ms Carr record that the claimant was stuttering and mumbling at this point. The notes do not indicate that they asked the claimant if he was alright or fit to continue with the meeting. Later in the meeting the claimant stated that he was a danger to himself and others. He was asked when he had last seen his doctor and confirmed that this was not for some time. He also disclosed that he had not taken his medication for a couple of days. Ms Carr’s evidence at tribunal was that there was only very limited discussion of the claimant’s statement that he had Borderline Personality Disorder and no suggestion that a medical professional should be consulted.

[55]The disciplinary hearing notes (bottom of page 72 of the hearing bundle) indicate that the respondent’s concerns in relation to the claimant’s attitude were regarding his failure to wear a tie, a matter that had in fact been dealt with previously on 11 July and in respect of which the claimant had already received a verbal warning. Mr Thompson also asked the claimant about his alleged failure to respond to Mr Thompson’s email of 9 June 2017. However, this overlooked that the claimant had sought in his grievance to engage with Mr Schilling on the subject of his working arrangements. Apart from these two issues, I cannot identify anything else in the disciplinary hearing notes that pertains to the claimant’s general attitude, as the other matters discussed concern his attendance and time-keeping, and his adherence or otherwise to company procedures. At the conclusion of the disciplinary hearing the claimant was issued with a written warning. The hearing notes record that the claimant challenged Mr Thompson’s finding in relation to his attitude and that he was told by Mr Thompson that this would be explained in the hearing outcome letter. That letter is at page 75 of the bundle and the explanation given to the claimant was as follows: “…general attitude is across your whole demeanour with regards to your attitude to work and your failure to abide by basic company rules and procedures.” The explanation is both circular and unsatisfactory, and it adds nothing to the other two expressed concerns.

[56]By an undated letter received by the respondent on 3 August 2017, the claimant appealed the written warning and raised a second grievance (pages 76 – 79 of the hearing bundle).

[57]The claimant’s second grievance was stated to be, “a grievance against the whole of The Best Connection”. The claimant complained about the way in which a parking fine had been dealt with, which I will return to below, but otherwise the grievance is effectively either a restatement of his first grievance (pages 57 and 58 of the hearing bundle). In his letter the claimant referred to his first grievance having not been acknowledged.

[58]Ms Carr gave evidence that the claimant was exceptionally rude to Mr Thompson on 10 August 2017. However, she also gave evidence that he was often muttering to himself at this time and that he came to work “looking a mess with un-ironed shirts and on occasions had an unpleasant odour”. This suggests that the claimant was experiencing ongoing mental health issues. Questioned by Counsel for the claimant, Ms Carr accepted that the steps taken to help the claimant in terms of his health issues were limited.

[59]The claimant’s appeal and second grievance were acknowledged by Mr Recci on 11 August 2017. Mr Recci responded substantively to the claimant by letter dated 24 August 2017. He did not meet with the claimant before issuing his decision, again contrary to the Acas Code of Practice on Disciplinary and Grievance Procedures. In addressing the claimant’s general attitude, Mr Recci detailed alleged performance issues around the claimant’s call to client ratio, an issue in respect of which there is no evidence before me that it was discussed with the claimant on 27 July 2017 and which Mr Recci certainly had not discussed with the claimant. In my judgment, Mr Recci’s response on the grievance was not entirely constructive and indeed in places it comes across as aggressive. I am particularly unimpressed by the way in which Mr Recci approached the claimant’s health issues. Mr Recci was critical of the claimant for suggesting in his second grievance letter that the respondent was aware of his mental health issues. Mr Recci wrote, “We are therefore, extremely concerned that you believe that we were fully aware of your depression / mental state, when no professional body has informed us of this, which is quite an accusation, particularly when stating the fact that you were suicidal. Mental Health is something that TBC always take seriously. On the four doctor’s notes that you have given us, one states anxiety and the other three, anxiety symptoms with no reference to depression or you being suicidal. This does cause us serious concern as to whether you have stated being suicidal to your doctor at any time.”

[60]I consider that Mr Recci’s comments were ill-informed and insensitive. The claimant had informed the respondent in each of his grievance letters that he had experienced suicidal ideation. Had Mr Recci troubled to meet with him he might have found out more about this and the claimant’s underlying health issues. Assuming he spoke with Mr Thompson or Ms Carr he would have been aware of the claimant’s distressed and dishevelled state in early June and that he was believed to be hearing voices in his head. Ms Carr would also have been able to tell him that the claimant had been muttering at work in August and that there had been a noticeable deterioration in his personal hygiene. Assuming he read the notes of the disciplinary hearing held on 27 July 2017 Mr Recci would also have been aware that the claimant had stuttered and mumbled during that meeting and had described himself as a danger to himself and others. Rather than seeking to understand why the claimant may have been suicidal or demonstrating any empathy or understanding, Mr Recci instead wrote, “This does cause us serious concern as to whether you have stated being suicidal to your doctor at any time”. That was a crass comment for him to make.

[61]Mr Recci went on to state in his letter that the claimant had failed to provide a recommended working schedule to accommodate a phased return to work. That was not correct. The claimant had written to Mr Schilling on 30 June 2017 to suggest temporary changes to his working arrangements while he adjusted to his new medication and he had also asked to not work Fridays until further notice. Mr Schilling failed to respond to these proposals; even when Mr Schilling’s letter of 11 July was finally posted to the claimant on or around 24 August 2017, the letter did not address the claimant’s proposed working arrangements.

[62]I deal briefly with the claimant’s complaint regarding the way in which a parking fine was dealt with. On 29 June 2017 the respondent’s Fleet manager informed Ms Carr that the claimant had incurred a parking fine whilst driving his company car. The details were forwarded to the Milton Keynes office and Ms Carr informed the claimant about the fine and reminded him that, in accordance with the respondent’s established documented procedure, the fine would be paid in the event of a second reminder and that the claimant would be charged an administration fee of £20. That is precisely what then happened. There is clear evidence at page 108 of the hearing bundle that the claimant received a copy of the respondent’s Company Car Driver’s Handbook when he took possession of his company vehicle in 2015. The Handbook sets out how fines will be dealt with. The respondent dealt with the matter in accordance with its Handbook and the claimant can have no complaint about this even if, which I accept, Mr Thompson was somewhat brusque with the claimant when he asked to see any documentation he had signed.

[63]The claimant was on annual leave on 25 August 2017. By email dated 31 August 2017 addressed to Ms Carr, he gave notice resigning his employment. His final day of employment was 29 September 2017, though he was certified unfit for work on 11 September 2017 with work related depression and did not return to work after that date.

[64]In his Form ET1, the claimant referred to the “results” of the disciplinary hearings and grievances as leading him to conclude that, “the employer was trying to drive me out by harassing me to cause anxiety attacks”. By the “results” I find that the claimant was referring to both the outcome of the proceedings as well as how they had been handled. In particular, I accept that the two undated letters that the claimant handed to Ms Carr on 30 June 2017 and his subsequent undated letter of appeal and second grievance, together with his second witness statement, evidence the matters that informed his decision to resign and in this regard, as confirmed in his second witness statement, that the claimant resigned in response to the delays in the respondent’s response to his first grievance and the absence of any meeting or hearing to discuss his appeal and each of his grievances. Law and Conclusions

[65]Subject to any relevant qualifying period of employment, an employee has the right not to be unfairly dismissed by his employer (s.94 of the Employment Rights Act 1996). 66. ‘Dismissal’, for these purposes includes, “…where the employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct” (s.95(1)(c) of the Employment Rights Act 1996).

[67]The claimant claims that he resigned by reason of the respondent’s conduct. It is not every breach of contract that will justify an employee resigning their employment without notice. The breach must be sufficiently fundamental that it goes to the heart of the continued employment relationship. Even then, the employee must actually resign in response to the breach and to not delay unduly in relying upon the breach as bringing the employment relationship to an end. S.95(1)(c) of the Employment Rights Act 1996 recognises that an employee may elect to resign on notice in response to the employer’s conduct and still be entitled to bring a claim of unfair dismissal. However, the employer’s conduct must be such as to warrant summary termination.

[68]It is an implied term of all contracts of employment that the parties will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to seriously damage or destroy the essential trust and confidence of the employment relationship – Malik v Bank of Credit and Commerce International S A

[1997] ICR 606

, HL.

[69]In W A Goold (Pearmak) Ltd. v McConnell and Another

[1995] IRLR 516

, the Employment Appeal Tribunal held that it is an implied term of a contract of employment that the employer will “reasonably and promptly afford a reasonable opportunity to [its] employees to obtain redress of any grievance they may have”. Subsequently, in Hamilton v Tanberg Television Ltd. the EAT suggested that W A Goold (Peermak) Ltd. is of limited scope as the case indicated that no procedure was available to the employees whereas in Hamilton the criticism was of the quality of the employer’s investigation.

[70]It will be apparent from my findings above that the claimant’s complaints as summarised at paragraphs 8(b), (c), (d) and (i) above are well-founded. I do not consider that individually they amount to a repudiatory breach of contract. As regards the conduct and outcome of the grievance and disciplinary proceedings, I am mindful not to elevate the Acas Code of Practice on Disciplinary and Grievance Procedures so that it has contractual force and effect. Likewise, the respondent’s disciplinary and grievance procedures did not form part of the claimant’s terms and conditions of employment. The question is whether the respondent’s handling of the disciplinary and grievance issues, as found by me, of itself or in combination with the other matters referred to strikes at the heart of the essential trust and confidence of the relationship. In my judgment it does. The claimant experienced unjustified hostility and aggression from Mr Thompson on 28 June 2017. Over the next couple of months, notwithstanding an accumulation of events which ought reasonably to have put the respondent on notice that something was seriously amiss in terms of the claimant’s health, including being informed by the claimant on 30 June 2017 that he had experienced suicidal ideation, the respondent failed to explore the claimant’s health issues with him or to contact his doctor or refer him to its own nominated practitioner. It failed to deal with the claimant’s doctor’s recommendation of a phased return to work and the claimant’s own suggestions as to the form this might take. As well as being crass and insensitive, Mr Recci’s letter of 24 August 2017 illustrates just how illinformed the respondent was in the matter of the claimant’s health. Its failings in this regard were compounded by the unsatisfactory way in which it handled the disciplinary proceedings, including Mr Recci’s failure to meet with the claimant to discuss his appeal against his second disciplinary warning, and also by its inept handling of his grievances. The fact that the respondent did (eventually) respond to his grievances and address his appeal against his second disciplinary warning does not, in my judgment, lessen the seriousness of the various failings which I have identified above. In my judgment, the respondent’s conduct as a whole was such as to destroy the essential trust and confidence of the relationship. I consider that the respondent acted without reasonable and proper cause and that the claimant resigned in response to the breaches as found by me and did not delay in resigning such that he can be said to have waived any of the breaches.

[71]In the circumstances I conclude that the claimant was dismissed for the purposes of s.95(1)(c) of the Employment Rights Act 1996. There was no reason for the respondent to treat the claimant as it did, certainly no reason within s.98(2) of the 1996 Act. In the circumstances I conclude that the claimant was unfairly dismissed.

[72]The claimant’s conduct in this matter is not above criticism. In particular, I have set out in my findings above a significant pattern of absences and poor time-keeping on his part over a period of three months, as well as a failure to report these in accordance with the respondent’s sickness absence reporting requirements. This is undoubtedly a case in which the claimant’s conduct has been a significant contributory factor in his constructive dismissal and it would be just and equitable to make a reduction in the basic award and any compensatory award to reflect such conduct. In my judgment the percentage reduction should be the same for each award. I take into account that the claimant’s, at times, erratic attendance, timekeeping and absence reporting were, as I find, directly related to his illhealth. But for the claimant’s health issues I would have said that there was particularly significant contributory fault on his part. I also take into account that various of his grievances were ultimately unfounded, though also acknowledge his perception of events was impacted by his health. I also have regard to the fact that the respondent sought to deal with his attendance and time-keeping issues through the imposition of lower level disciplinary warnings and that it did not fail to address his grievances entirely, even if it did not meet with him to discuss them. In all the circumstances I consider that it would be just and equitable to reduce the basic award and any contributory award by 55%. I shall list the matter for a remedy hearing at which the parties’ representatives can address me further on any other matters relevant to remedy in this case. I shall make further case management orders in respect of the remedy hearing which will be notified separately.

Findings

[1]In a reserved judgment following a hearing on 4 January 2019 I upheld the claimant’s complaint that he had been unfairly dismissed by the respondent. The case came back before me on 18 April 2019 to determine remedy. The claimant was represented again by Ms Renaud, and the respondent by Mr Darley. In accordance with the case management order dated 18 March 2019 the claimant had updated his schedule of loss and prepared a remedy hearing bundle running to page 92A.

[2]I heard evidence from the claimant, who was questioned by Mr Darley.

[3]The claimant is now 27 years of age. He told the tribunal that he has suffered with anxiety since he was a teenager albeit he had never sought medical or other professional support for the condition until he became ill in May 2017. By the time the claimant left the respondent’s employment in September 2017 he was quite unwell. He was experiencing suicidal ideation, preferred not to leave his home and was having difficulties in his personal relationship. He was on anti-depressant medication by the summer of 2017 and his medication dosage was increased after he left the respondent’s employment. The claimant claimed, and was awarded, employment and support allowance (“ESA”) in 2017. He attended a medical assessment by Dr Laszlo Buga on 10 January 2018. The medical report from that assessment is at pages 26-49 of the remedy bundle and includes a detailed history. At page 17 of the report (page 42 of the remedy bundle) Dr Buga wrote: “The ESA 50, med 3 and medical evidence indicates that there would be substantial mental or physical risk if the client were found capable of work. He takes anti-depressant, he has ongoing suicidal ideas without plan but frequently, he has crisis line contact, GP is aware. He had counselling in the summer. No attempt.”

[4]Dr Buga’s assessment was inevitably focussed on the claimant’s then current and likely future fitness to work. Whilst it considered his medical history, Dr Buga was not concerned with whether and, if so, the extent to which the health issues then affecting him were the manifestation of a long-term underlying health condition and to what extent, if at all, they reflected workplace issues (let alone the respondent’s treatment of him).

[5]The claimant’s GP records for the period September 2017 to April 2019 are at pages 52 to 62 of the remedy bundle. At pages 61-62 is form ESA 113 which was completed by the claimant’s GP practice and which identified the material aspects of his condition as mixed anxiety and depression, panic attacks, work stress/anxiety, and “Court Case” (which I infer to be these proceedings). I note that form ESA 113 records that the claimant was first seen by his GP in May 2017 but that the “symptoms started a few months prior to that”. His medical records also support the evidence he gave at tribunal, namely that he began to feel better into 2018 but that he experienced a setback in his recovery when the original tribunal hearing date was postponed and that his anti-depressant medication dosage increased at this time. The claimant’s evidence was that he wanted the case to be over. By October 2018 his health was improving again. By December 2018 he was well enough to take up a short term contract as an Assistant in Training at Marks & Spencer. The claimant had not had to actively apply for the job as his mother works for Marks & Spencer and had alerted him to a temporary Christmas opportunity. The claimant has in fact remained at Marks & Spencer and, at tribunal, expressed the hope that he might secure permanent employment.

[6]The claimant continues to be anxious, though said, “I’m getting there”. He works from 1.30pm to 9.30pm four days per week and works a further 3 hour shift on a Saturday. He continues to experience difficulty sleeping, but his working hours mean that this presents less of an issue for him, certainly in terms of holding down employment. He is no longer on medication. He works ‘back of house’ at Marks & Spencer, dealing with deliveries, picking lists etc. It is not a customer-facing role. He does not have to work overtime, or take calls, or deal with work-related matters outside of his contracted working hours. The claimant’s evidence at tribunal is that he feels ‘safe’ in his current working environment and that the job has made him feel good in himself, in particular he has a very positive relationship with his colleagues and supervisors. Questioned briefly by Mr Darley the claimant stated that after his experiences at the respondent he would not want to return to a similar working environment.

[7]In my judgment on liability I determined that it would be just and equitable to reduce the basic award and any compensatory award by 55%. In the course of their submissions on remedy the parties’ representatives made further submissions on the issue of whether or not there should also be a reduction in accordance with the well established principles in Polkey v AE Dayton Services Ltd

1988 ICR 142

and/or an adjustment pursuant to s.207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”).

[8]I first remind myself of the order in which any adjustments and deductions should be made. In Digital Equipment Co Limited v Clemence (No 2)

[1997] ICR 237

EAT, Morrison J held that the correct approach is first to offset any contractual or ex-gratia termination payments and any sums earned by way of mitigation in order to arrive at an employee’s net loss, then to make any reduction to reflect contributory fault or the chance that the employee would have dismissed or left employment in any event. In Rao v Civil Aviation Authority

[1994] IRLR 240

the Court of Appeal held that an employment tribunal should first make the Polkey reduction under s.123(1) of the Employment Rights Act 1996, as the size of the reduction may have a significant bearing on what further reduction falls to be made for contributory conduct under s.123(6). I have, of course, already determined the size of the s.123(6) reduction. S.124A of the Employment Rights Act 1996 stipulates that any adjustment for failure to comply with a relevant ACAS Code should be made “immediately before any reduction under s.123(6) or (7)” i.e. after any Polkey reduction but before any adjustment for contributory fault. Polkey

[9]Mr Darley submitted, in the alternative, that the claimant would have remained on sick leave and been dismissed fairly on grounds of incapacity 6 months after the date of his constructive dismissal; that his erratic behaviour and attendance would have continued had he returned to work leading to his eventual dismissal within 6 months of his constructive dismissal; that he would have resigned his employment in any event within 6 months of his constructive dismissal, partly because he is temperamentally unsuited to working in recruitment but also because he had a very poor perception of the respondent even where its actions did not warrant this. Ms Renaud challenged Mr Darley’s various submissions. She submitted on behalf of the claimant that the situation would have worked out very differently had the respondent handled the claimant’s health issues appropriately. She highlighted that unfairness was central to the dismissal and that the relationship would not have broken down in the way it did but for that unfairness and had the respondent taken greater care to apprise itself of the health issues the claimant was experiencing. She pointed out that limited support was made available to the claimant when he needed it the most, even once he communicated the full extent of his health issues and the recommendation of a phased return to work was not acted upon. Ms Renaud submitted that had suitable adjustments been put in place the claimant’s absences would have greatly diminished.

[10]In Software 2000 Limited v Andrews & Others

[2007] ICR 825

, EAT, Elias J reviewed all the authorities on the application of Polkey and summarised the principles to be extracted from them. He confirmed that if an employer contends that an employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee. He confirmed that there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Nevertheless, tribunals must recognise the need to have regard to material and reliable evidence that will assist it in fixing just and equitable compensation, even if there are limits to the extent to which they can confidently predict what might have been. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. A finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary is so scant that it can effectively be ignored.

[11]As I noted in my reserved judgment on liability, in the course of the hearing on 4 January 2019 Mr Maxwell, counsel for the respondent stated that the respondent no longer contended that the claimant would have been dismissed in any event (as had been pleaded at paragraph 43b. of the Grounds of Response). Counsel’s apparent concession in this regard also reflected in his skeleton argument. Mr Darley accepted that some form of concession had been made by counsel on 4 January 2019. He had not himself been present at the hearing to hear counsel’s submissions. Whilst my recollection, confirmed by the reserved reasons, is that it was in the nature of a general concession and that it is inconsistent with at least the second of Mr Darley’s three propositions under Polkey, the fact remains that I am under a duty to consider making a Polkey reduction whenever there is evidence to support the view that an employee might have been dismissed or otherwise left employment if the respondent had acted fairly. In the circumstances it seems to me that it would be inappropriate for me to disregard any of Mr Darley’s submissions or to hold the respondent to the concession which I consider was made (and intended to be made) on 4 January 2019.

[12]In predicting what might have been, it is highly relevant that the respondent failed to apprise itself of the claimant’s health issues and failed to put in place even a rudimentary return to work plan. In my judgment had the respondent discharged its responsibilities in an informed and responsible manner it would have put in place a more detailed return to work plan which included adjustments not only to the claimant’s days and hours of work but to his job content, performance targets and expectations, possibly with some form of ‘emotional’ support, even if this just comprised regular catch-ups to see how the claimant was. In my judgment, once the respondent was on notice that the claimant had mental health issues, in particular once it became aware that he had experienced suicidal ideation, it could have communicated its concern for his well-being and readily conveyed that it wished to support him in his recovery. Instead its main focus was his conduct and performance even though these were a manifestation of his ill-health. Had the relatively basic steps above been taken by the respondent I consider that they would have had a significant impact upon the working relationship and the claimant’s perception of the respondent, as well as his recovery.

[13]The evidence is that the claimant had an underlying health condition and that the episode of anxiety and depression he experienced in 2017 arose independently of the respondent’s treatment of him in the period June to September 2017. Nevertheless, I consider that had the respondent acted reasonably the claimant would have returned to work by the end of July 2017, albeit I believe that a phased return, with reduced days and hours of work would have needed to have remained in place for a period of 2 months following his return. I consider that by the end of September 2017, namely when he in fact left the respondent’s employment, the claimant would have returned to work full-time, possibly with a long-term adjustment to the performance expectations of him if he was considered to be disabled within the meaning of the Equality Act 2010. I have regard in particular to the fact that prior to May 2017 the claimant had a satisfactory performance and attendance record. As such, I do not accept Mr Darley’s submission that the claimant’s erratic performance and behaviour would likely have continued into the future and accordingly that he would have been dismissed for misconduct and/or poor performance. Likewise had the respondent been more supportive of the claimant and the claimant perceived it as more understanding of his circumstances, I am confident that he would have maintained a satisfactory level of attendance so that he would not have been dismissed for incapacity. Although he is now employed in a very different role, the fact the claimant was kept on by Marks and Spencer after the Christmas period confirms to me that he is ordinarily capable of holding down a job. In my judgment the claimant’s recovery and return to work was avoidably and significantly impacted by the respondent’s poor handling of the situation and then exacerbated by the loss of his employment (caused by the respondent) and the subsequent uncertainty of his situation including the outcome of his employment tribunal claim against the respondent. However, I do have regard to the fact that the claimant has a long history of anxiety, even if he had not previously sought medical or other professional help for the condition. There is weight in Mr Darley’s submission that the claimant may have resigned his employment in any event, in my judgment not because he perceived the respondent negatively, but because he may be temperamentally unsuited to working in recruitment and/or a pressured sales environment. On the evidence available to me, I consider that there was a 25% chance that the claimant might have resigned his employment by the end of June 2018 i.e, within 9 months of his constructive dismissal. S.207A TULR(C)A

[14]The disciplinary proceedings against the claimant and his grievances were central to these proceedings. His claim that he was constructively dismissed was largely upheld by reason of how the disciplinary and grievance issues were handled by the respondent. His claim concerns matters to which the ACAS Code of Practice on Disciplinary and Grievance Procedures applies. As I set out in my reserved judgment on liability at paragraphs 38, 46 to 49, 53 to 55, 59 to 61 and 70 the respondent failed to comply with the Code in various material respects. In my judgment those failings were unreasonable. They were not properly explained by the respondent as Mr Thompson and Mr Recci, the two relevant decisions makers, never gave evidence to the tribunal. I am not obliged to increase any award to the claimant, though am empowered to do so where I consider it just and equitable to do so in all the circumstances. I remind myself that it is not an unfettered discretion and that the tribunal may only have regard to circumstances that are related in some way to the failure to comply with the Code. The Code was not ignored altogether, though the failings were in my judgment numerous and serious, in particular the respondent did not meet with him to discuss his grievances. As I say, there has not been a satisfactory explanation by the respondent for its handling of the disciplinary and grievance proceedings. It has certainly not put forward any mitigating circumstances. Form ET3 was not completed to indicate the numbers of staff employed by the respondent in the UK. However, it was not suggested to me that the respondent lacked manpower or resources. In all the circumstances I consider that it would be just and equitable to increase any award to the claimant by 15%. Basic Award

[15]The claimant gave notice and remained in the respondent’s employment, albeit on sick leave, through to the end of his notice period. His employment terminated on 29 September 2017. His gross monthly basic pay was £1,500 or £346.15 per week. Page 17 of the remedy bundle evidences that the claimant’s net monthly pay, exclusive of any commission, was £1,182.93 or £272.98 per week.

[16]A week’s pay is a statutory construct used for the purposes of calculating the basic award for unfair dismissal. A week’s pay is to be calculated by reference to gross pay. Commission can count as remuneration for the purposes of calculating a week’s pay but only where commission varies with the amount of work done. Where, as was the case with the claimant, commission payments varied with the success achieved, a week’s pay is to be calculated in accordance with the provisions of s.221(2) of the Employment Right Act 1996, which requires a week’s pay to be calculated by reference to basic remuneration only.

[17]Using the claimant’s basic remuneration of £346.15 per week the starting basic award in this case is £1,038.45, albeit this reduces to £467.30 as a result of the 55% reduction which I previously determined should be made to reflect the claimant’s conduct in this matter. There is no adjustment to the basic award to reflect an unreasonable failure to comply with an applicable ACAS Code. Compensatory Award

[18]As regards the compensatory award, the claimant’s claimed loss of basic salary to the date of the remedy hearing is £30,600. However, his net weekly pay was £272.98 rather than £382.50 as stated in the claimant’s updated schedule of loss. Accordingly, the claimant’s loss of basic salary to the date of the remedy hearing is in fact £21,838.40 (80 weeks x £272.98).

[19]The claimant claims loss of commission benefits to the date of the remedy hearing on the basis that his average commission payment was £107 per week. In fact, looking at the period January to April 2017, namely before the claimant fell ill, his net earnings were £5,834.16 (after adding back in deductions for his student loan and disregarding re-imbursement of expenses in January 2017). His net basic pay during that 4-month period was £4,731.72 (4 months x £1,182.93), meaning that his net commission was £1,102.44, equating to £275.61 per month or £63.60 per week. I do not accept Mr Darley’s submission that the period June to September 2017 should be considered when assessing loss of commission given the claimant’s ill health during that period in time. On the basis that the claimant’s average commission was £63.60 per week, I calculate that the loss of commission to the date of the remedy hearing is £5,088 (80 weeks x £63.60).

[20]On the basis that the total loss of income to the date of the remedy hearing is £26,926.40 (£21,838.40 + £5,088) the claimant has additionally suffered a loss of employer pension contributions of £269.26 (based on a 1% contribution by the respondent on all his earnings).

[21]The value of the loss of the claimant’s company car was agreed by the parties as being £2,870.40, or £375.82 per month.

[22]I calculate therefore that the claimant’s total remuneration had he remained in the respondent’s employment to the date of the remedy hearing would have been £30,066.06. I calculate that his remuneration in the 39 weeks to 29 June 2018 would have been £14,657.20 and in the period from 30 June 2018 to the date of the remedy hearing £15,408.86. From these two sums is to be deducted £8,209.53 being the total of the sums received by the claimant by way of mitigation of his losses. Of that sum, I calculate that the claimant’s ESA payments totalled £2,339.20 in the 32-week period from 20 November 2017 to 29 June 2018. Accordingly, his net loss of remuneration to 29 June 2018 is £12,318. His net loss of remuneration from 30 June 2018 to the date of remedy hearing is £9,538.53 (£15,408.86 - £5,870.33).

[23]It is the claimant’s case that he will close the gap in terms of his earnings within 12 months of the date of the remedy hearing. The current gap in his earnings according to my calculation is £49.59 per week (£375.82 - £326.23). This period was not actively challenged by Mr Darley. In my judgment it would be just and equitable to award the claimant 12 months’ future loss of earnings, namely the sum of £2,578.68.

[24]I shall award the claimant 1 week’s gross basic pay namely £346.15 in respect of the loss of his statutory rights. Compensatory award for the period 29 September 2017 to 29 June 2018.

[25]The claimant’s net loss of remuneration for this period is £12,318, to which I add £346.15 in respect of the loss of his statutory rights. The starting point therefore for the period 29 September 2017 to 29 June 2018 is £12,664.15. After applying the s.207A 15% uplift this sum increases to £14,563.77 but then decreases to £6,553.70 after application of the 55% reduction for contributory fault. Compensatory award for the period 30 June 2018 to 17 April 2020

[26]The claimant’s net loss of remuneration for this second period is £12,117.21 (£9,538.53 + £2,578.68). Applying a Polkey reduction of 25% to reflect the chance the claimant would have resigned his employment by 30 June 2018, this sum reduces to £9,087.91. After applying the s.207A 15% uplift this sum increases to £10,451.10 but then decreases to £4,702.99 after application of the 55% reduction for contributory fault.

[27]I shall therefore make an award of compensation to the claimant in the sum of £11,256.69.

[28]There was some brief discussion at tribunal of whether the Recoupment Regulations would apply. Having considered the matter further, I am satisfied that the Regulations do not apply to ESA, which I have therefore taking into account in my calculations above.