Mr J Fennell v Arnold Clark Automobiles Ltd: 4102684/2020
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102684/2020
Between
Mr J FennellClaimantArnold Clark Automobiles LtdRespondent
Before
Employment Judge R McPhersonDate 4 February 2021
JUDGMENT
[1]Paragraphs 2 and 3 of the claimant’s proposed amendment intimated Monday 23 November 2020, there being no objection, are allowed; and[2]Paragraph 1 of the claimant’s proposed amendment intimated Monday 23 November 2020, which is objected to, is allowed; and[3]The CVP Final Hearing scheduled to commence today Tuesday 24 November and Wednesday 25 November and conclude Thursday 25 November 2020 is converted to a case management Preliminary Hearing in terms of Rule 48 of the Employment Tribunal Rules 2013; and E.T. Z4 (WR)[4]A further case management Preliminary Hearing is appointed for 10 am on Tuesday 15 December 2020 to consider further procedure.
REASONS
[1]At the outset of today’s hearing, both parties confirmed that all directions issued 26 October 2020 and 16 November 2020 for the CVP scheduled to start today, had been complied with, including; preparation of Joint Bundle for use at this scheduled CVP Final Hearing, preparation of a Joint Statement of Agreed Facts, issue of List of Witnesses, draft Timetable for the Hearing and draft List of Agreed issues.[2]The agreed timetable set out that the initial part of today’s scheduled CVP Final Hearing was to consider preliminary matters.[3]As background I note that on Friday 20 November 2020 the claimant’s now representative had provided a List of witnesses for the claimant which included the claimant and one other person (the second claimant witness).[4]Further I noted that the claimant intimated a proposed (3 paragraph) Amendment (the 23 Nov 2020 Proposed Amendment) by email Monday 23 November 2020 at 11.21am indicating that “we would request that the amendment be dealt with as part of Preliminary Matters”.[5]The claimant had additionally provided a witness statement, although not directed to do so for any witnesses, from the second claimant witness.[6]The respondent by e-mail 2.54 pm on Monday 23 November 2020 by e-mail confirms no objection to Paragraphs 2 and 3 of the 23 Nov 2020 Proposed Amendment. However, Para 1 was objected to, the respondent setting out that in their view it raises new matter of inconsistent treatment. However, and entirely properly in my view in accordance with the overriding objective, the respondent intimated that it was accepted that the claimant had raised at the appeal hearing (on Wednesday 10 June 2020, by reference to the index to the Joint Statement of Agreed Facts) that he felt he had been treated differently to that of an ex-employee not identified as the second claimant witness.[7]The Joint Statement of Agreed Facts did not include any reference to alleged previous inconsistent treatment.[8]As further background, I noted that the claimant had presented his claim on Wednesday 20 May 2020 following ACAS date A Thursday 9 April 2020 and ACAS date B Wednesday 22 April 2020. The ET1 identified a representative, however, I was advised by the claimant’s present representative, that the representative in the ET1 is a relative of the claimant rather than a professional representative.[9]I understand that the claimant’s present representative was instructed around Tuesday 20 October 2020.[10]In accordance with the agreed timetable, the initial part of the CVP Final Hearing dealt with Preliminary Matters.[11]For the claimant, I was advised by the claimant’s representative, that essentially due to a coincidence the claimant had come into contact with the second claimant witness around Wednesday 18 November 2020, it being indicated that this person was asserted to have worked with the claimant. Although was not someone who the claimant had maintained contact with subsequently, and in particular certain alleged events (which the claimant asserts are relevant to his claim) occurred at the workplace in 2016.[12]I was advised that following the claimant contact on Wednesday 18 November 2020, the claimant’s representative arranged direct contact with this second claimant witness around 4pm on Thursday 19 November 2020, with this providing a witness statement which was thereafter provided to the Tribunal and the respondents, following the provision of the claimant’s list of witnesses on Friday 20 November 2020.[13]The 23 Nov 2020 Proposed Amendment paragraph 1 sets out that “The respondent was inconsistent in its decision to dismiss the Claimant. The Claimant raised at his appeal hearing that there had previously been an employee in the same Job with a driving licence?”[14]For the respondent it was argued that Friday 20 November 2020 was the first time the respondent had heard of the claimant’s intention to argue that he had been treated differently to the second witness and had only been provided with in effect general detail of the allegation. The respondent further referred to Chandhok v Tirkey [2015] ICR 527 (Chandhok) which I refer to below arguing that inconsistent treatment had not been pled in the ET1. It was argued that there was no factual basis in the pleadings for allegation of inconsistent treatment and the claimant was seeking to introduce an entirely new basis for challenge. It was argued that amendment would prejudice the respondent who would require a fair opportunity to investigation the allegations. Further, and if the amendment was to be allowed this CVP Final Hearing would require to be adjourned and the respondent would be put to significant additional expense to investigate the allegations. It would not be possible as at today to confirm to the Tribunal what time frame would be required to investigate such alleged (historic) allegations which would appear to date to 2016.[15]For the respondent I understand that their position on any cost order is presently reserved while they consider matters including against the coincidental circumstances outlined above. I understand that the respondent will reflect on the position, including having regard to this being a CVP Remote Hearing and whether a further Full Hearing by way of CVP would result in material additional costs and having regard to the terms of Rule 76 of the 2013 Rules. For the respondent, the position is essentially reserved to the next hearing.[16]For the claimant it was argued that there was no prejudice, the respondent knew from the Appeal Hearing of the inconsistent treatment. In the alternative, it was argued that the amendment should be allowed, the evidence of the second witness being adduced and the Tribunal considering the relevancy of same at the conclusion of this Final Hearing. Relevant Law The 2013 Rules[17]Rule 2 of the 2013 Rules sets out that: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[18]Rules 29 and 30 of the 2013 Rules provide general case management powers including the power to allow an amendment. Rule 30 identifies that an application may be made either in writing or in a hearing.[19]Rule 41 of the 2013 Rules provides “41. The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”.[20]Rule 48 of the 2013 Rules provides “Conversion from preliminary hearing to final hearing and vice versa 48. A Tribunal conducting a preliminary hearing may order that it be treated as a final hearing, or vice versa, if the Tribunal is properly constituted for the purpose and if it is satisfied that neither party shall be materially prejudiced by the change” Relevant Case Law Amendment[21]I reminded myself that the EAT in Selkent Bus Co Ltd v Moore [1996] IRLR 661 (Selkent) identified, that in relation to amendment, the Tribunal “should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it”.[22]In addition, I have reminded myself that the EAT in Ladbrokes Racing v Traynor UKEATS/0067/06 (Traynor) indicated that the precise wording to be introduced should be set out.[23]The EAT in Selkent were considering an appeal which arose from an application to amend an existing unfair dismissal claim, where the application had been made a fortnight before the date fixed for the hearing. The amendment sought to introduce a new allegation that the dismissal related to the claimant’s trade union membership or activities and was thus automatically unfair. The Tribunal had allowed the amendment but was overturned on appeal, the EAT commented that that factors which had influenced its decisions were: “(a) The nature of the amendment Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action. (b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, s.67 of the 1978 Act. (c)The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Rules for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision.”[24]I further reminded myself that the EAT observed in Khetab v AGA Medical Ltd [2010] 10 WLUK 481 (Khetab) that the purpose of pleadings “…is so that the other party and the Employment Tribunal understand the case being advanced by each party so that his opponent has a proper opportunity to meet it”, and further , as the respondent identified Chandhok Langstaff J, commented at para 18 the parties should set out the essence of their respective cases and “… a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it”.[25]In Chandhok the EAT considered an appeal by a respondent against a decision of an Employment Tribunal to allow an amendment to expand an existing 64 paragraph claim of race discrimination to include explicit reference of what the claimant asserted was “her status in the caste system”. The respondents in the appeal contended that “caste” was not an aspect of race as defined by section 9 of Equality Act 2010. The appeal was dismissed. At para15 J Langstaff commented that the “judge identified the claimant’s case … not from what was asserted in the claim, lengthy though it was, but from material which could only have come from either her witness statement (which was brief) or what he was told.” Although the appeal was dismissed at para 16 J Langstaff criticised this approach and expressly stated the importance of the ET1 and commented “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but is free to be augmented by whatever parties choose to add or subtract merely on their say so. Instead, it serves not only a necessary but useful function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made…. “and at para 17 commented that Employment Tribunals were “not at the outset designed to be populated by lawyers, and the fact that law now features so prominently before employment tribunals does not mean those origins should be dismissed as of little value. Care must be taken to avoid such undue formalism as prevents a tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principal by which reference to any further document (witness statement or the like) could be restricted.” Discussion and Decision.[26]For the claimant I consider that there is risk of material prejudice to the claimant in the event that paragraph 1 of the 23 Nov 2020 Proposed Amendment is not allowed. There is a cogent explanation for the late (written) amendment which was prompted by a coincidence of contact with the second claimant witness, the claimant and his representative acted promptly thereafter.[27]For the respondent, however, I agree that they have not been provided with an opportunity to respond to a new pled factual aspect of the claimant’s claim.[28]It would not be fair to the respondent to require to proceed with scheduled CVP Final Hearing after allowing the paragraph 1 of the 23 Nov 2020 Proposed Amendment.[29]In accordance with the overriding objective I have therefore directed that this Final Hearing be postponed and converted to a Preliminary Hearing in terms of Rule 48 of the 2013 Rules and, and that in accordance with the guidance set out above including in Selkent and Chandhok I have allowed the whole of the 23 Nov 2020 Proposed Amendment to include paragraph 1.[30]The respondent, however, requires to be given an opportunity to investigate the terms of the amendment. The respondent has fairly confirmed that they are not presently able to confirm what period they would require to respond to the amendment by way of Further and Better Particulars at today’s hearing. As such and rather than appoint a specific period for such responsive Further and Better Particulars I have issued separate directions in relation to the appointment of a case management Preliminary Hearing to consider further procedure.[31]In coming to this view the Tribunal have applied the relevant case law.[32]Separate Directions for further procedure were issued at this now converted Preliminary Hearing[33]Separate Directions for the Final Hearing were issued at this case management Preliminary Hearing.
Issues
[34]Since his dismissal, the claimant has obtained employment in the production line of a company manufacturing COVID tests. The claimant had difficulty obtaining another job as a vehicle technician. Factors affecting that were the COVID 19 pandemic and the fact of the claimant’s driving ban. The claimant has taken reasonable attempts to mitigate his losses following his dismissal. The claimant started his new employment on 1 September 2020.
Relevant Law
[35]The law relating to unfair dismissal is set out in the Employment Rights Act 1996 (‘the ERA’), in particular Section 98 with regard to the fairness of the dismissal and Sections 118 – 122 with regard to compensation. Section 98(1) states: - ‘In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Section 98(2) sets out that a reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, [(ba) is retirement of the employee](c) is that the employee was redundant, or(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. Section 98(4) states: - [Where] the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and, (b) shall be determined in accordance with equity and the substantial merits of the case. This determination includes a consideration of the procedure carried out prior to the dismissal and an assessment as to whether or not that procedure was fair.[36]In circumstances where the reason for dismissal is conduct in terms of section 98(2)(b), what has to be assessed is whether the employer acted reasonably in treating the misconduct that he believed to have taken place as a reason for dismissal. Tribunals must not substitute their own view for the view of the employer (Sainsbury's Supermarkets Ltd –v- Hitt [2003] IRLR 23 and London Ambulance Service NHS Trust -v- Small [2009] IRLR 563) and must not consider an employer to have acted unreasonably merely because the Tribunal would not have acted in the same way. Following Iceland Frozen Foods Ltd –v- Jones 1983 ICR 17 the Tribunal should consider the ‘band of reasonable responses’ to a situation and consider whether the respondent’s decision to dismiss, including any procedure prior to the dismissal, falls within the band of reasonable responses for an employer to make. The importance of the band of reasonable responses was emphasised in Post Office -v- Foley [2000] IRLR 827.[37]Where the Tribunal makes a finding of unfair dismissal it can order reinstatement or in the alternative award compensation. In this case the claimant seeks compensation. This is made up of a basic award and a compensatory award.[38]The basic award is calculated as set out in the ERA Section 119, with reference to the employee’s number of complete years of service with the employer, the gross weekly wage and the appropriate amount with reference to the employee’s age. Section 227 sets out the maximum amount of a week’s pay to be used in this calculation.[39]The basic award may be reduced in circumstances where the Tribunal considers that such a reduction would be just and equitable, in light of the claimant’s conduct (ERA Section 122 (2)).[40]In terms of the ERA Section 123(1) the compensatory award is such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. In terms of Section 123(6) where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. Submissions[41]Both parties’ representatives spoke to their own substantive written submissions. Both parties made submissions on the material facts and their interpretation of these. There was substantial agreement on the law. Where either party’s submissions were not accepted, this is addressed in the Decision section below.[42]The respondent’s representative relied upon: - D v Royal Bank of Scotland [2013] CSIH 86 Taylor v OCS Group [2006] ICR 1602 (C of A) Royal Society for the Prevention of Birds v Croucher [1984] ICR 604 Boys and Girls Welfare Society v MacDonald [1997] ICR 693 Hadjioannou -v- Coral Casinos Ltd [1981] IRLR 352 EAT Radia v Jeffries International Limited UKEAT/0123/18/JOJ (at paras 90 – 92)Sunshine Hotel Ltd v Goddard UKEAT/0154/19[43]In his submission that the dismissal was for a conduct reason in terms of section 98(2)(b), the respondent’s representative relied on D v Royal Bank of Scotland [2013] CSIH 86, and in particular the Inner House’s endorsement of the previous observations of the EAT in Thomson v Alloa Motor Co Ltd [1983] IRLR 403. He submitted that the Claimant’s conviction for Dangerous Driving was a result of misconduct committed by the Claimant outside the workplace. His submission was that the impact which the Claimant’s criminal conviction had on the Claimant’s capacity to carry out the core driving duties of his role as a technician with the Respondent brought the circumstances of the Claimant’s misconduct within the definition of “conduct” for the purposes of section 98(2)(b) of the ERA, as per the decision of the Court of Session in D v Royal Bank of Scotland (supra).[44]It was submitted that the Respondent’s view that the Claimant was unsuitable for continued employment as a Technician was a direct consequence of the Claimant’s own criminal conduct and resultant criminal conviction. The respondent’s position was that the Claimant’s criminal conduct was the root cause of the circumstances which resulted in his dismissal and therefore the principal reason for the Claimant’s dismissal. It was submitted that if the Tribunal concludes that the principal reason for the Claimant’s dismissal was not conduct, then the set of facts which resulted in the Claimant’s dismissal would quite clearly fit within at least one of the other potentially fair statutory reasons for dismissal. The respondent’s esto (alternative) categorisations were capability or ‘some other substantial reason’ (‘SOSR’). It was accepted that there was no statutory requirement for a technician to hold a valid driving licence.[45]The respondent addressed the various factors relied upon by the claimant’s representative in her submissions. He submitted that in the event of a finding of unfair dismissal, a 100% deduction to any compensatory award should be made on application of Polkey. He also submitted that a 100% deduction should be made to both the basic award and the compensatory award to reflect the claimant being fully responsible for his dismissal.[46]The claimant’s representative relied upon: - Securicor Guarding Ltd v Mr C Rouse [1994] IRLR 633 P v Nottingham CC [1992] ICR 706 Post Office -v- Fennell [1981] IRLR 221[47]It was the claimant’s representative’s submission that the claimant was unfairly dismissed because of the lack of investigation; failure to provide a clear reason for the dismissal; insufficient time to prepare for the disciplinary hearing; the respondent’s decision to dismiss was rushed and predetermined; the respondent failed to consider all reasonable alternatives to dismissal all the respondent did not take a consistent approach when deciding to dismiss the claimant and that the respondent’s decision to dismiss the claimant was not within the band of reasonable responses. It was the claimant’s representative’s position that it was not appropriate to apply a 100% contribution deduction. An agreed schedule of Loss was provided, including pension loss.[48]Neither representative made submissions on the application of any uplift in respect of the ACAS Code of Practice. Comments on evidence[49]Evidence was heard on oath or affirmation from all witnesses. Much of the evidence was agreed in a statement of agreed facts. On hearing the claimant’s evidence, it emerged that there were some areas of dispute. Mr Main was recalled to hear his evidence on three specific matters which arose in the claimant’s evidence and which were not previously put to Mr Main. These were: whether prior to the sentencing hearing the claimant had asked what the likely outcome of a ban would be re his employment; whether he had offered to look for alternative employment for the claimant and how long he had been in a management role.[50]In the main, all witnesses gave their evidence in a straightforward and credible way. With regard to the areas of dispute, I concluded that the difference in evidence arose from the person’s perception of events. It was the claimant’s evidence that Mr Main was not experienced as a manager and that he had to leave the decision to the People Team. I accepted Mr Main’s evidence that he had around 25 years’ experience as a manager and that the respondent’s practice was that the People Team made decisions on disciplinary matters. I considered it to be credible in those circumstances that the claimant’s perception of that would be that he understood that Mr Main did not have the experience to deal with disciplinary matters. In respect of when the invite to the disciplinary hearing was given to the claimant, I accepted the claimant’s evidence on the basis of his clear recollection that he was given the letter on the Friday and his conversations with colleagues and family along the lines of ‘what am I supposed to do with getting this last thing on a Friday with the hearing on Monday’. I found that to be a more credible and reliable recollection, compared with Mr Main’s position that he ‘would have printed it off and given him it as soon as I received it” having ‘no reason not to’. Mr Main had no clear recollection of when he had handed the letter to the claimant. I accepted the claimant’s credible evidence that he didn’t mention at the disciplinary hearing that he had only received the letter last thing on the Friday because It was the way I was feeling – anxiety and stress. There was a lot hanging over me. A lot of information to take in’”. For those reasons I accepted the claimant’s version of events re when the letter was given to him but I did not consider that timing to be material. I did consider it to be material that that letter was the first indication to the claimant from the respondent that he may be dismissed as a result of a Dangerous Driving conviction. On the basis of the claimant’s own evidence that there was a ‘lot going on’, I accepted Mr Main’s evidence that he had not undertaken to look at alternative jobs for the claimant. I did not consider that to be material because I accepted the evidence that there were no alternative jobs available for the claimant at the time of his dismissal.[51]I attached significant weight to the undisputed fact that no written indication had been given by the respondent to the claimant prior to the issue of the letter inviting him to a disciplinary hearing letter that a full valid driving licence was a conditional requirement for his job as a technician and that losing his driving licence would be likely to or may lead to his dismissal. UI considered this to be particularly significant in circumstances where the respondent has a Driving Policy and Driving Guidelines in place, but there is no mention in either of the likely consequences on employment should a technician (or any other employee who is required to drive as part of their role) loses their driving licence. I also considered this to be particularly significant in circumstances where interim arrangements were put in place to allow the claimant to continue his job without driving and without it being made clear that such measures were only temporary and could not be in place longer term, should the claimant lose his driving licence. The claimant was credible in his evidence as to his discussions with Mr Main about the likely outcome of the sentencing hearing. He said ‘I was hopeful about it. We didn’t sit down to discuss. I suggested I might not get a ban. I didn’t know if it would be a ban or not. I tried to explain as best I could.’ There was no clear evidence that there had been a specific request for the respondent to put in writing that the claimant would be likely to be dismissed if he received a driving ban. I therefore did not find that that request had been made but did not take that point to be material. It was not in dispute that it hadn’t been made clear to the claimant that the steps put in place re an apprentice doing his job were only interim measures and could not continue of he was banned from driving.[52]I accepted that the claimant was aware that a driving ban could have an effect on his job, but I considered there to be an important distinction between him being aware that his solicitor was going to say at the sentencing hearing that he needed a driving licence for his job against there being no written policy, contractual term or letter informing him that if he were to receive a substantial ban then he would be likely to be dismissed.[53]I found the claimant to be credible in his description of how much driving he was required to do in his role but accepted that it would be within the reasonable band of responses for the respondent to consider that in the circumstances his employment couldn’t continue because he had lost his driving licence.[54]It was clear from his evidence that the claimant’s perception of the People Team is that they deal with disciplinary matters and not that they offer a source of support or assistance to employees. His evidence was that they were ‘certainly not there for me’. That perception is perhaps a consequence of the respondent’s practice of individuals from the People Team making decisions in disciplinary matters. The intended consequences of ensuring independence and consistency in decision making and ensuring that decisions are made taking into account developments in employment law are more usually maintained in employers of a similar size to the respondent by ensuring that an appropriate HR employee advises the manager who makes the decision at initial hearing and appeal. The fact that members of the People Team made the decision does not however make the dismissal unfair.[55]There were some matters raised before the Tribunal which were not put for consideration during the respondent’s internal proceedings and therefore were not material to the reasonableness of the decision to dismiss. I made it clear to all parties during the proceedings that it was not for me to substitute my own view for the decision of the employer, and that if matters were not raised at the time, or on appeal then there was a difficulty in matters which had not been raised during the internal proceedings, being raised at the stage of these Tribunal proceedings. That was the case in respect of a number of the claimant’s representative’s criticisms of the extent of investigation carried out by the respondent. It may be that the issues she raised would have been relevant points for the respondent to take into consideration, but I had to consider whether the investigation was within the reasonable range and it was relevant that that some of these criticisms were not raised either at the disciplinary or appeal stage.[56]The representatives had very helpfully agreed a number of facts which are reproduced in my Findings in Fact. Where the evidence did not support what was agreed, my findings vary from that statement. This is notably in respect of reference to the Respondent’s Employee Conduct Policy. The agreed statement of facts stated at paragraph 6.2:- “The Employee Conduct Policy stated that disciplinary action may need to be taken where an employee is convicted of a criminal offence outside of work which had an impact on their work (document 9 in the joint bundle of productions at page 52).” I considered that that paraphrasing did not accurately summarise the position in the Policy and so instead quoted the relevant section.[57]I took into account that the claimant’s position in his evidence as to the extent of the impact of his driving ban on his role was not entirely reflective of what had been agreed in the statement of facts, particularly in respect of the extent of cars which required a road test. I took into account the claimant’s evidence that ‘the whole disciplinary process, appeal and ACAS was a whole new language to me. English was a difficult subject for me at school. I became a mechanic to get away from that. I’ve not been at school for a long time. It may seem simple to you but not for me.” In those circumstances I did not take that to affect the claimant’s general credibility.[58]There was a direct dispute in evidence between the claimant and Ms Ferguson as to whether the claimant’s initial point at the Disciplinary Hearing was that the Hearing should not proceed and there should first be an Investigatory Hearing. I found the claimant’s recollection of events and detail given in respect of him having taken advice from his stepfather and how he felt at the time to be credible. I placed considerable weight on the consistency of the claimant’s position with the position reflected in the first paragraph of the Disciplinary Hearing Notes. It is clear from those Minutes that before the recording started there was some sort of conversation along the lines as reported by the claimant in his evidence. In examination in chief, Ms Ferguson was asked if the claimant had raised that he had not had time to prepare and replied ‘No. Absolutely not’. Her position then as to why there wasn’t a separate investigatory hearing was ‘I didn’t think further investigation was needed. I don’t know what was required. The facts were clear. That’s why I proceeded to a disciplinary hearing without further investigation.” When pressed in cross examination, Ms Ferguson said ‘It’s correct that Jamie said that he didn’t feel an investigation had taken place”. And ‘Jamie felt that it was not in line with the Disciplinary Procedure as there was no investigation. I said there isn’t always an Investigation Hearing and Alastair Mair had given a statement and there was no separate Investigation Hearing.”. I noted that Ms Ferguson’s initial position was consistently to immediately support the respondent’s case e.g., in cross examination when it was put to her that the Driving Guidelines do not contain a term that a technician has to hold a driving licence her reply was ‘I understand it’s not stated in that but it’s in a separate policy’ When pressed if there was another policy where that was written Ms Ferguson then said ‘Sorry – No.” In cross examination, her position in respect of lack of preparation was ‘He had ample opportunity to put forward his case. I asked him for his input re what happened in him losing his licence.’[59]When first asked why the claimant was dismissed, Ms Ferguson’s rely was ‘Due to his suitability for the role. He could no longer be a technician for Arnold Clark, There was no reasonable adjustment which could be put in place for that length of time – an 18 month ban plus another 6 months because of the insurance position’ I took into account and accepted Ms Ferguson’s evidence that the ‘root cause’ of the claimant’s dismissal was “due to [his] own actions of Dangerous Driving’ and that the length of the driving ban and period of time of impact of that on the branch were significant. I took into account Ms Ferguson’s evidence as to the categorisation of the reason for dismissal. She said “He was no longer suitable to carry out the role. I saw it as Some Other Substantial Reason” In cross examination Ms Ferguson’s position was It was his suitability for the role because he lost his licence’.[60]Ms Cunningham’s evidence as to the reason for the claimant’s dismissal was ‘I was in agreement with the reasons for the dismissal. His behaviour caused him to be convicted of a criminal offence – Dangerous Driving – which meant he was unable to do a large proportion of his role. That was in relation to his conduct / behaviour.” Ms Cunningham’s evidence was that she was ‘satisfied with the level of investigation. It had established the full facts.” Ms Cunningham’s evidence was that a separate investigation had not been necessary because ‘She had the full facts available: Jamie had lost his driving licence; he was disqualified for driving for 18 months – that was not disputed. There were clear facts. A separate investigatory hearing was not beneficial before the disciplinary hearing’. I did not accept that the respondent had the ‘full facts.’ It was clear that there was a dispute as to the extent to which driving was required in the claimant’s particular role as a technician and the effect on other technician’s efficiencies. I had to consider whether the extent of the investigation was reasonable in the circumstances.[61]There were some factors arising from Ms Cunningham’s email communication to Mr Young which I attached weight to. These were: -• There was no communication of Mr Young’s practice to employees• Mr Young refers to a practice re recruitment, which is distinct from• I noted that Ms Cunningham’s position in respect of there being inconsistent treatment between Mr Clark and the claimant was that Mr Clark’s ban had taken effect before January 2018 (in December 2017) and therefore it wouldn’t be fair to change a decision which had already been made re allowing him to continue to be employed as a technician. That had some parallels to the claimant’s situation in respect of lack of notification of consequences.[62]In considering the reasonableness of the decision to dismiss the claimant I took into account Mr Clark’ straightforward evidence in respect of the reasons for his dismissal.[63]I applied the relevant law to the findings in fact. I took into account the relevant size, administrative resources and nature of the respondent’s business.[64]I required to determine what was the reason or principal reason for the respondent’s decision to dismiss the claimant. It was not in dispute that what caused the claimant’s dismissal was that the claimant had a driving ban of 18 months, which was as a direct consequence of the Claimant’s own criminal conduct and resultant criminal conviction of Dangerous Driving, and in those circumstances the respondent had taken the view that the Claimant was unsuitable for continued employment as a Technician. That was the reason for dismissal. Although the ET1 had indicated that there may be another reason for the dismissal that argument was not made at the Hearing.[65]In terms of section 98(1) ERA, I was then satisfied that the respondent had shown the reason for the dismissal. I did not accept the respondent’s categorisation of that as a conduct reason in terms of section 98(2)(b). I did not accept that the reason should be categorised as conduct because the conduct relied upon by the respondent (Dangerous Driving leading to a criminal conviction) was not conduct within the course of the employment and there is no indication in a written policy or other communication to employees that such conduct would be likely to be considered misconduct and lead to disciplinary action up to and including dismissal. Additionally, it was not the conduct itself which led to the dismissal but the consequences of that on his ability to drive in his role as technician. The claimant informed the respondent of his charge and sentencing and at neither stage was he told by the respondent that a consequence of that conduct could be his dismissal. There had been arrangements put in place which had allowed the claimant to continue in his role as a technician without a driving licence. I accepted that that conduct outside the workplace (Dangerous Driving leading to a criminal conviction) had an effect on the claimant’s role.[66]I did not accept the respondent’s esto (alternative) case that the categorisation was dismissal by reason of capability in terms of section 98(2)(a) because there was no written policy in place requiring technicians such as the claimant to hold a full valid driving licence and the claimant had been allowed to continue in that role for an interim period, with others carrying out his driving duties. For that reason, holding a full valid driving licence could not be said to be an essential requirement of the job, consequent to dismissal without that licence. In coming to that conclusion I had regard to His Honour Judge Pugsley comments in Burns v Turboflex Ltd EAT 377/96: I attached significant weight to the fact that nowhere is it stated in the contract of employment or Driving Guidelines that a full valid driving licence is a requirement for the job of technician and / or that a ban from driving may lead to termination of that employment. I placed significant weight to the fact that at no time prior to the letter inviting him to a disciplinary hearing was the claimant made aware that a consequence of him losing his driving licence could be dismissal, despite him having kept the respondent informed of the accident and the consequential court proceedings.[67]I accepted the respondent’s esto (alternative) case that the dismissal was for ‘some other substantial reason’ in terms of section 98(1)(b). I accepted that the claimant’s driving ban had an impact on his ability to carry out the duties of his job as a technician. In accepting that esto case I proceeded on the basis that there was no difference in the substance or circumstances which led to the dismissal and that the difference is one of re-categorisation or relabelling in terms of section 98. There was no dispute as to what was in the mind of Ms Ferguson when making the decision to dismiss. In her evidence Ms Ferguson herself queried the categorisation of ‘conduct’ and said that the reason could perhaps be better categorised as capability or some other substantial reason. I took into account Smith v Charles Pugh (Windscreens) Ltd t/a National Windscreens ET Case No.3200917/18, which coincidently also involved a technician, and where the tribunal found that the principal reason in the dismissing officer’s mind was the employer’s inability to cope with the employee’s unreliability. In the Tribunal’s view, this constituted SOSR, in that the needs of the business were such that it needed its technicians to be reliable. While the letter of dismissal stated that the employee was being dismissed for conduct, the Tribunal recategorised that to capability.[68]I was satisfied that the reason was a substantial reason, with regard to the claimant’s job as a technician. I was satisfied that the respondent’s witnesses genuinely believed that the driving requirements in the job as technician were such that the claimant could not continue in his role without a driving licence for the period of his driving ban. I was satisfied that the substantial reason was genuinely the reason for the claimant’s dismissal.[69]Having decided that the respondent had shown the reason for the dismissal as required in terms of section 98(1)(b) and that that is a substantial reason with regard to the claimant’s job, which could justify dismissal of a technician such as the claimant, I then considered the fairness of the dismissal in terms of section 98(4).[70]In terms of section 98(4)(a), in all the circumstances (including the size and administrative resources of the respondent) I accepted that it was within the reasonable band of responses for the respondent to decide to terminate the claimant’s employment as a technician in circumstances where the claimant had been banned from driving for 18 months (and where in terms of the respondent’s insurance cover a further 6 months would require to pass before driving) and that that ban had been because of his own criminal conduct and resultant criminal conviction of Dangerous Driving. I accepted that in those circumstances the respondent could treat that reason as a sufficient reason for dismissing the claimant. I accepted that dismissal was within the reasonable band of responses given the length of the claimant’s driving ban and the respondent’s position on the consequences on his ability to carry out his tasks as a technician. However, in considering whether the respondent acted reasonably or unreasonably in so treating (section 98(4(a)) and in determining the case in accordance with equity and the substantial merits of the case (section 98(4)(b)) I decided that the dismissal was an unfair[71]I accepted the respondent’s representative’s submission that when applying section 98(4) I required to consider the overall process, including appeal (Taylor v OCS Group [2006] ICR 1602 (C of A)). I was satisfied that the claimant had had an opportunity to make his points on appeal and that these had been considered by Ms Cunningham.[72]The claimant’s dismissal was an unfair dismissal because at no time prior to the letter inviting him to a disciplinary hearing was the claimant made aware that a consequence of him losing his driving licence could be dismissal, despite him having kept the respondent informed of the accident and the consequential court proceedings. A fundamental principle of fairness of dismissal is that employees should be made aware of the consequences of their actions before they carry out those actions. The appeal stage did not remedy that failure. It was accepted that the respondent has no written policy setting out a requirement for technicians to have a full valid driving licence. It was accepted that the email from Mr Young informing of his practice in place to that effect from 1 January 2018 was not communicated to employees. That email only referred to recruitment, which is distinct from dismissal. Despite the claimant informing the respondent of the accident, criminal charge, court hearing, conviction of Dangerous Driving, interim ban and sentencing hearing, at no time did he receive an indication from the respondent that if he were to lose his driving licence, either on the basis of a ban of 18 months or for some other period, that that would be likely to lead to his dismissal because holding a full valid driving licence is considered to be an essential requirement of the position of technician. If the claimant had received such notification from the respondent and /or if those consequences were stated in the respondent’s Driving Guidelines or otherwise in a written policy, then the claimant would have been aware of that possible / likely consequence prior to his sentencing hearing. In circumstances where the claimant had not received any such notification of the likelihood of dismissal, where an interim arrangement had been put in place allowing his employment to continue while his ban was on an interim basis and where as far as the claimant was concerned there was no issue with the arrangements being in place for a longer period of time (although I accept that it was reasonable for the respondent to ultimately conclude otherwise) it was unfair to the claimant that he first received notification from the respondent of the consequence to his employment of a driving ban, after the sentencing hearing. For these reasons I decided that the respondent had acted unreasonably in terms of section 98(4)(a) and that the in accordance with equity and the substantial merits of the case (section 98(4)(b)) the dismissal was an unfair dismissal.[73]It is unknown what effect it may have had on the claimant’s behaviour outside the workplace if it was stated in the Respondent’s Driving Policy or Driving Guidelines that a criminal conviction such as Dangerous Driving and a resultant ban on driving for 18 months would be likely to lead to termination of the employment of a technician. If the claimant had been aware of that likely consequence prior to the sentencing hearing, then that could have been presented to the court as evidence and may have had an effect on the sentencing outcome. I accepted the claimant’s evidence that the sentence was made on the basis that the claimant would not lose his job if he was banned from driving: there was no evidence to the contrary. There was a dispute between the claimant and Mr Main as to whether the claimant had asked Mr Main what the effect on his job would be if he were banned from driving. Mr Main’s evidence on recall was that he hadn’t been asked that question but if he had then he wouldn’t have given an answer. I did not then place weight on whether or not the claimant had specifically asked that question. I considered it to be material and placed significant weight on the fact that there is no term in the Respondent’s Driving Policy or Driving Guidelines or otherwise that normally a full valid driving licence will be an essential requirement of a technician’s job and that at no time prior to his sentencing hearing was the claimant notified that a ban would be likely to lead to his dismissal. A driving licence is not set out in the contact of employment as being an essential requirement for the role as technician.[74]It seemed to me that the claimant was disadvantaged twice by the respondent’s failure to notify him in writing that a likely consequence of him being banned from driving would be his dismissal: if evidence had been presented at the sentencing hearing of the likely consequences of a driving ban on the claimant’s employment then that it likely to have been taken into account in sentencing; if that evidence had been available at the sentencing hearing then the ban may not have been for 18 months. We cannot know what effect such evidence would have had at the sentencing hearing, but I consider it to be likely to have had some effect. It may have been that a ban would have been for a shorter period. I considered that to be important because the respondent’s position was that the length of the claimant’s ban was a factor in their consideration of the reasonableness of the decision to dismiss.[75]There was considerable reliance by the claimant on it being reasonable for the respondent to have continued with the interim measure of allowing the claimant’s driving duties to be carried out by Connor Key and /or other technicians. I accepted the respondent’s witnesses’ evidence as to why that arrangement was not considered to be suitable to be in place for the duration of the claimant’s driving ban and the 6 months thereafter required in terms of the respondent’s insurance terms. I accepted the evidence of the respondent’s witnesses in that regard as credible, reliable and consistent. I accepted those reasons as reasonable. I also accepted that from the claimant’s point of view there was no issue with others carrying out the driving requirements of his job. It was not for me to substitute any decision I would have made for that made by the respondent. I required to consider whether the respondent’s decision was within the band of reasonable responses for an employer to take, after reasonable investigation. I accepted the respondent’s representative’s submission that dismissal was within the band of reasonable responses.[76]With regard to the claimant’s representative’s inconsistency argument, I had regard to the three limited circumstances in which a disparity argument may be available being identified by the Court of Appeal in Hadjioannou -v- Coral Casinos Ltd [1981] IRLR 352 as:(a) where there is evidence that the employee has been led by an employer to believe that certain categories of conduct will either be overlooked or at least will not be dealt with by the sanction of dismissal(b) where there is evidence that the purported reason stated by the employer is not the real or genuine reason for the dismissal, and(c) where there is evidence of ‘truly parallel circumstances.[77]What was relied on by the claimant in his argument of inconsistency treatment was comparison with Ross Buchanan and Mathew Clark. I accepted the respondent’s representative’s submissions that these were not ‘truly parallel circumstances’. Neither were banned from driving for 18 months as a result of a conviction of Dangerous Driving. I took (a) to be of some limited relevance to the respondent’s failure to specify in their Driving Guidelines that if a technician were to lose their driving licence that may lead to termination of their employment. That was not reasonable in terms of section 98(4) and in the circumstances of this case.[78]I did not accept the claimant’s representatives’ submission that the respondent ought to have considered furlough as an alternative to dismissal. The fact of the furlough scheme does not serve as an alternative to the decision to dismiss. I accepted that in the consideration of the reasonableness of the dismissal a factor may have been the length of the driving ban and whether the claimant was likely to be on furlough for that period, but it did not take the decision to dismiss out with the range of reasonable responses because that furlough was not considered as a factor. In circumstances where the claimant had been convicted of Dangerous Driving and received a driving ban of 18 months and where I accepted the respondent’s position that that had an effect on his ability to do the duties of his job as a technician, it was within the band of reasonable responses for the respondent to dismiss the claimant. The fact of the existence of the furlough scheme is not material to the decision to dismiss.[79]Having found that the dismissal was an unfair dismissal, I considered the respondent’s representatives’ submissions in respect of application of a Polkey reduction. That argument was based on there being no difference in the timeline if a fair procedure had been followed. I considered whether, in the circumstances of this case, what made the dismissal an unfair dismissal was a substantive rather than a procedural unfairness. In doing so, I had regard to O’Dea v ISC Chemicals Ltd 1996 ICR 222, CA, particularly at para 234 – 235. I also had regard to the guidance of the Inner House of the Court of Session in King and ors v Eaton Ltd (No.2) 1998 IRLR 686, Ct Sess (Inner House), where the Court of Session held that, in considering the question of what would have happened had the unfairness not occurred (‘the hypothetical question’, to use the phrase used by the EAT in Fisher v California Cake and Cookie Ltd 1997 IRLR 212, EAT), making a distinction between the ‘merely’ procedural and the more genuinely substantive will often be of some practical use. I considered whether in this case the dismissal could have been a fair dismissal but for a merely procedural lapse. The claimant’s dismissal was unfair because of the failure to intimate prior to the issue of the letter inviting the claimant to a disciplinary hearing that a technician’s ban on driving may lead to dismissal. This was particularly the case where there were written contract terms and the respondent had in place a Driving Policy and Driving Guidelines, but there was no mention of that likely consequence in them. This was not then a case where but for a procedural lapse the claimant might have been fairly dismissed at a later date. There was a failure to previously advise of the consequences of what was later relied upon as the reason for[80]I took into account that even if it had been stated in a written contractual term or policy that a conviction for Dangerous Driving and resultant driving ban would be likely to lead to termination of a technician’s employment the claimant may still have driven in such a way as to lead to that conviction. We cannot know that. I took into account that had a letter been issued to the claimant following the claimant’s conviction for Dangerous Driving but prior to the sentencing hearing, although that evidence may have had an effect on the sentence imposed, the claimant may still have received a driving ban. If a ban were imposed for a lesser period because of the evidence on the implications on his employment, the respondent may still have considered the period of such a ban to be such that that was a substantive reason for dismissal. I took into account that in those circumstances that would all have occurred within the same time frame as actually occurred. I considered that these matters should be dealt with under a deduction for contributory conduct rather than a Polkey deduction, all in assessing a just and equitable compensatory award. This was not a case where but for a procedural lapse the claimant might have been fairly dismissed at a later date.[81]I awarded a compensatory award which I considered to be just and equitable in all the circumstances. In assessing the compensatory award, I had regard to the guidance provided by the Court of Appeal in Rao v Civil Aviation Authority 1994 ICR 495, CA.[82]In reaching my conclusion not to apply a Polkey reduction in the circumstances of this case, I had regard to Lord Prosser’s observations in King and ors v Eaton Ltd (No.2) 1998 IRLR 686, Ct Sess (Inner House): ‘[T]he matter will be one of impression and judgement, so that a tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say, with more or less confidence, that the failure makes no difference, or whether the failure was such that one cannot sensibly reconstruct the world as it might have been.’[83]In these circumstances, where the driving ban followed the claimant’s criminal conviction of Dangerous Driving, I accepted the respondent’s representative’s submission that it is appropriate to consider the question of the claimant’s contribution to his dismissal. I accepted the respondent’s position that a significant level of contribution was appropriate. In terms of section 123(6) ERA, I found that the claimant’s actions (Dangerous Driving) to a significant extent caused or contributed to his dismissal and was ‘blameworthy or culpable’ conduct. I had regard to the factors set out by the Court of Appeal in Nelson v BBC (No.2) 1980 ICR 110, CA, i.e. that the conduct must be culpable or blameworthy; the conduct must have actually caused or contributed to the dismissal, and it must be just and equitable to reduce the award by the proportion specified. These factors were satisfied in the circumstances of this case.[84]I noted that section 122(2) ERA allows ‘any conduct of the complainant before the dismissal’ to be taken into account when assessing the basic award and that for the purposes of section 123(6) and the compensatory award, only conduct that ‘caused or contributed’ to the dismissal could be counted. In the circumstances of this case I applied the same level of deduction to both the basic award and the compensatory award. I did not accept the respondent’s representative’s submission that contribution should be assessed at 100%. I took into account that had there been evidence before the court at the sentencing hearing on the likely consequences of the claimant receiving a driving ban then his sentence may have been lessened. I accepted that even if a lesser sentence had been imposed then the respondent may have taken the decision to dismiss and that decision may have been within the reasonable band of responses. I took into account that prior to the accident the claimant was not made aware by his employer that a criminal conviction for Dangerous Driving could lead to dismissal. I took into account that the claimant had a criminal conviction for Dangerous Driving and had been banned from driving for 18 months. I required to consider a hypothetical situation. In all the circumstances, I considered it to be just and equitable to reduce both the claimant’s compensatory and basic award by 75% to reflect the claimant’s contribution to his dismissal by the actions which led to his Dangerous Driving conviction. In doing so, I applied s123(1) ERA in assessing compensation of ‘such amount as the tribunal considered to be just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.’ I could not take any other approach than to apply a percentage deduction because we could not know the consequences of evidence being presented at the sentencing hearing that a driving ban (either of 18 months or of any other period) would be likely to lead to the claimant’s dismissal. It was not known whether the claimant’s trial was on summary or on indictment. There was evidence before me that the period of the ban was taken into account, but not to what extent. Termination of the claimant’s employment with the respondent was not to the claimant’s knowledge envisaged at the time of the sentencing hearing and could not be regarded at that time as being part of the consequences of his actions which led to the Dangerous Driving conviction. We could not know the effect, if any, on the claimant’s driving had it been clear to him from the outset that his role with the respondent as technician required him to have a driving licence and / or that a conviction of Dangerous Driving and a resultant driving ban of 18 months (or any lesser period) would be likely to least termination of his employment. I took into account the claimant’s knowledge that his solicitor was going to argue for a lesser ban on the basis that he required to drive for his job. In all the circumstances, and taking into account the guidance and categories provided by the EAT in Hollier v Plysu Ltd 1983 IRLR 260, EAT, I considered that the claimant was largely to blame for his dismissal and therefore assessed the contribution at 75%.[85]I accepted that the claimant had taken reasonable steps to mitigate his loss. I accepted that in circumstances of the restrictions caused by the Covid 19 pandemic and the because of the claimant’s loss of his driving licence he was restricted in his search for alternative employment. The claimant has taken reasonable steps and has secured alternative employment through an agency. As a result of the claimant gaining that employment, a fixed period of 4 months is agreed in respect of wage loss until 1 September 2020.[86]The parties’ representatives had agreed the calculations of the claimant’s basic and compensatory awards. Sections 123 and 124 of the ERA set out the relevant statutory provisions in respect of calculation of the compensatory award. I assessed the financial award on the application of Digital Equipment Co Ltd -v Clements (No 2) [1998] IRLR 134 CA. I took the parties’ representatives agreed figures on the attributable loss sustained (£6,534.24). I considered whether any reduction for failure to mitigate was appropriate and determined that it was not. I considered whether it was appropriate to apply a reduction on application of Polkey –v- Dayton Services Ltd 1988 ICR decided that it was not. I identified what is ‘just and equitable’ in terms of s123(1), including with regard to the principles in Polkey –v- Dayton Services Ltd 1988 ICR and the guidance of the Court of Appeal in Gover and others v Propertycare Ltd 2006 ICR 1073, CA. I applied a deduction of 75% to the compensatory award, to reflect the claimant’s contribution to his dismissal (£6534.24 - £4900.68 = £1,633.56).[87]It was not argued before me that the ACAS Code of Practice on disciplinary and grievance procedures applied and that an uplift should be awarded for failure to comply with that Code, in circumstances where the reason for dismissal was a substantial reason in terms of ERA section 98(1)(b).[88]The claimant’s unfair dismissal basic award is £1152.70, calculated with regard to his age at EDT (23) his number of complete years of service with the respondent (4) and his weekly gross pay ((£1998 / 12) x 52 = £461.08). It is noted that the schedule of loss refers to a calculation on a different rate of pay to that agreed. For the reasons set out above, because of the claimant’s contributory conduct, a reduction of 75% is applied to that figure (£1152.70 - £864.53) £288.17.[89]For the reasons set out above, the claimant’s dismissal was an unfair dismissal, and the claimant is entitled to an unfair dismissal basic award of £288.17 and a compensatory award of £1,633.56, totalling £1,921.73. Recoupment[90]The Employment Protection (Recoupment of Job Seekers Allowance and Income Support) Regulations 1996 applies to the unfair dismissal compensatory award. The claimant has been in receipt of Universal Credit for part of the period in respect of which the compensatory award relates. To avoid double payment, the relevant government department will seek to recover the amount of Universal Credit which the claimant received during this period. This will be recovered from the respondent before the relevant part of the award is paid to the first claimant. The prescribed element of this award, to which the Recoupment Regulations apply relates to the period from 23 March 2020 until 1 September 2020. The claimant received £1,223.90 in Universal Credit. That amount of £1,223.90 is the prescribed element of the compensatory award. The compensatory award exceeds the prescribed element by (£1,921.73 - £1,223.90) £697.83.[91]For these reasons, the sum of (£288.17 + £697.83) £986 from the total award of £1,921.73 is now due to the claimant from the respondent. The prescribed element of £1,223.90 should not be paid to the claimant by the respondent until the relevant government department serves a recoupment notice on the respondent advising of the amount of benefit paid to the employee, or notification is given that there will be no recoupment. On service of a recoupment notice, the amount specified in that notice will then fall to be paid by the respondent to the relevant government department. Any balance between that specified amount and the prescribed element of £1,223,90 falls to be paid by the respondent to the claimant once the respondent has received this recoupment notice or notice that there will be no recoupment, a copy of which will be sent to the claimant. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical errors in the Judgment sent on 11 February 2021, by deleting:(1) ‘£1,921.73’ at page 39, paragraph 90, line 22, and substituting therefore ‘£1,633.56’.(2) ‘£697.83’ at page 39, paragraph 90, line 22, and substituting therefore ‘£409.66’.(3) ‘£697.83’ at page 39, paragraph 91, line 24, and substituting therefore ‘£409.66’.(4) ‘£986’ at page 39, paragraph 91, line 24, and substituting therefore ‘£697.83’. An amended version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you.