Mr T Scott v Ms L Bentley T/a Flora International: 4110585/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4110585/2019

Venue Glasgow

Hearing 2 and 3 November 2020 Deliberation on 4 and 19 November 2020

Between

Mr T ScottClaimant

Ms L Bentley T/a Flora InternationalRespondent

Before

Employment Judge DHoey

Mr Kennedy for claimant

(Advocate) for claimant

Instructed by for claimant

Messrs EMC for claimant

Solicitors for claimant

Ms Lynn Bentley for claimant

Mr Johnstone for respondent

(Barrister) for respondent

Instructed by for respondent

Messrs Lyons for respondent

Davidson for respondent

Date 23 November 2020

JUDGMENT

1 . The claimant was fairly dismissed and his claim of unfair dismissal is not wellfounded.

[2]The respondent did not breach the claimant’s contract by dismissing him without notice. His claim for breach of contract (wrongful dismissal} therefore fails. E.T. Z4 (WR)

[3]The claim in relation to the failure to provide a written statement in terms of section 1 of the Employment Rights Act 1996 fails, in the absence of any claim being upheld. 5 4. The remaining claims were withdrawn by the claimant and they are dismissed.

REASONS

Introduction io 1 The claimant presented his claim form on 3 September 201 9 with ACAS early conciliation having taken place on 19 August 2019 until 23 August 2019. Following a number of preliminary hearings, the claims progressing were restricted to unfair dismissal, breach of contract (notice pay) and holiday pay. The remaining claims had been withdrawn and were to be dismissed. 15 2 In the course of the hearing the claimant’s agent indicated that the holiday pay claim was being withdrawn. While it was suggested during the hearing that the only claim proceeding was unfair dismissal (as the holiday pay claim was being withdrawn and was to be dismissed), at the submissions stage it was confirmed that the claims proceeding were unfair dismissal and breach 20 of contract (in respect of failure to pay notice pay).

Issues

[3]The hearing began by discussing what the issues to be determined were. The issues to be determined in this case were agreed to be as follows: --------------------Unfair dismissal 1.1 It was conceded that the claimant was dismissed. The first issue is what the reason or principal reason for the dismissal was. The respondent says the reason was conduct in respect of incidents that occurred on 29 July and 30 July 201 9. The claimant does not accept the respondent dismissed the claimant by reason of conduct (and disputes misconduct). The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct. 1 .2 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: 1 .2.1 there were reasonable grounds for that belief; 1 .2.2 at the time the belief was formed the respondent had carried out a reasonable investigation; 1 .2.3 the respondent otherwise acted in a procedurally fair manner; 1 .2.4 dismissal was within the range of reasonable responses. 1 .2.5 In this case the respondent argues that it had embarked upon a procedure and then due to intervening events decided that a procedure would be utterly futile and summarily dismissed the claimant. It was agreed that the question is whether the circumstances were such that it was fair not to follow any procedure. It was alleged by the respondent that dismissal was inevitable and it was utterly futile to follow any procedure. Remedy for unfair dismissal 1 .3 This is a compensation only case. If there is a compensatory award, how much should it be? The Tribunal will decide: 30 1 .3.1 What financial losses has the dismissal caused the claimant? 1 .3.2 Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job? 1.3.3 If not, for what period of loss should the claimant be compensated? The respondent argued that the claimant had not reasonably mitigated his loss. 1 .3.4 Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? 1 .3.5 If so, should the claimant’s compensation be reduced? By how much? 1 .3.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 1.3.7 Did the respondent or the claimant unreasonably fail to comply with it? 1 .3.8 If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25% ? 1.3.9 If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? 1.3.10 If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? 1.3.11 Does the statutory cap of fifty-two weeks’ pay or £86,444 apply? 1 .4 What basic award is payable to the claimant, if any? 1 .5 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? Wrongful dismissal/breach of contract 30 1.6 What was the claimant’s notice entitlement? Did he breach his contract, as a matter of fact, such that no notice pay is due? If not, how much is payable? Written statement 1 .7 When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars? 1.8 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay. 1 .9 Would it be just and equitable to award four weeks’ pay? 2. The parties had worked up a joint bundle of productions and written witness statements had been produced in respect of the respondent and her witness (her former partner) and the claimant and his witness (his wife). The claimant’s agent asked to introduce 2 witness statements that had been produced just after the hearing started. These were 2 witnesses who were commenting upon points made by the respondent. The claimant’s agent indicated that these statements had only just been taken. 3. Having considered matters and in particular the terms of the overriding objective I decided to allow the statements to be produced and relied upon. While there had been an order for provision of statements, some weeks previously, and while there was no clear reason why they had not been produced sooner, the statements were short and appeared to be of limited relevance given the nature of the issues in dispute and the points arising. Provided the respondent was given some time to consider, the hearing length ought not to be affected and it was in the interests of justice to allow the statements, giving the Tribunal and the respondent advance notice of the witnesses’ evidence.

[4]We agreed a timetable in respect of the evidence to be heard to ensure the time was used properly and that matters could proceed expeditiously. The parties worked with the Tribunal to ensure the overriding objective was achieved.

[5]As a further preliminary issue the parties had agreed that the Tribunal would hear a short (4 minute) recording the respondent had taken of part of an exchange between the claimant and the respondent. The respondent asserted that it was important to listen to the recording, not so much for the words used (as a transcription had been made which the parties agreed was accurate) but to hear the way in which the claimant spoke to the respondent during the discussion on 29 July 2019. Both parties agreed that this would be instructive.

[6]The respondent argued that the recording demonstrated the claimant’s lack of respect for the respondent.

[7]Given the nature of the claims before the Tribunal, I agreed to listen to the recording which was played in the Tribunal.

[8]After a short adjournment to allow the respondent time to consider the new witness statements, the parties confirmed that the hearing in respect of unfair dismissal (and latterly confirmed also breach of contract) could proceed.

[9]The Tribunal heard from 6 witnesses, the respondent, her former partner, the claimant, his wife and 2 former employees who had worked with the claimant before.

[10]This is a case that turns upon credibility of the evidence before the Tribunal and I require to carefully assess the evidence led before the Tribunal to conclude whose position is preferred. This was not an easy task and I have taken a considerable period of time to consider carefully and in detail the evidence that was led as a whole in reaching my decision.

[11]In assessing the unfair dismissal claim I must consider the facts that were before the employer and assess the employer’s actions as against the statutory test (as supplemented by the authorities). For the breach of contract claim (and in connection with any contributory conduct of the claimant in connection with the unfair dismissal claim) I must decide what actually happened, on the balance of probabilities, which means more likely than not.

[12]I have reached my conclusions by taking account of all the evidence presented, including the oral evidence and written productions to which the Tribunal was directed.

[13]Each of the witnesses who gave evidence did so in what appeared to be a candid and credible fashion, subject to the points I make below. I make the following findings are fact which are the facts necessary to determine the issues in dispute. I do not make findings in respect of each of the disputes in the evidence where it is not necessary to do so. Findings in fact Background 1 4. The respondent was a TlbfTsTand operated a flower delfveyservlce. She la a sole trader, having assumed control of the business from her mother who herself had purchased the business in December 2009.

Background

[15]The claimant began his employment with the business in April 2009. His employment transferred by operation of law when the owners of the business for which he had worked changed. 5 16. While the business had originally employed a small number of staff, by the time the claimant took control of the business on 3 June 2019 the respondent only employed one employee, the claimant. There were no other staff. io 1 7. The business run by the respondent was closed on 23 March 2020. No up to date written statement given to claimant

[18]A document had been issued to the claimant by the respondent’s mother 15 when she was in control of the business which referred to some of the main terms and conditions relating to the claimant’s employment applicable at the time. That would have confirmed the claimant’s rate of pay and hours or work. 20 19. The respondent had intended to issue a fresh contract of employment to the claimant. She understood that she had to update the terms and conditions (to confirm she was now the claimant’s employer) within 2 months of her taking control.

[25]Working relationships 20. The claimant had a reasonably good working relationship with the claimant’s mother when she had been in control of the business. There had been some disagreements and on occasion the ciaimant’s mother had tn 30 speak to the claimant and other staff who were affected by the claimant’s behaviour at work. 21 . No formal disciplinary sanction had been issued although the respondent’s mother had cause to discuss the claimant’s behaviour at work with him. Claimant’s duties22. The claimant’s role was as delivery driver with such additional duties and tasks reasonably required of him during working hours. His hours of work were 9.30am until 3.30pm Monday to Friday. The claimant had assisted with other tasks during his time in the business, which included collecting io and delivering stock, cleaning, cutting paper, assembling boxes and work within the shop. Working with the claimant

23. The respondent had assisted her mother in the business particularly when her mother became ill. The claimant had some experience of working with the claimant.

24. The claimant had worked closely with the claimant’s mother and had developed a close bond. For example, the claimant assisted with the respondent’s mother’s allotment and assist with some personal work. The claimant had also assisted the claimant’s mother financially when the 25 business had encountered a difficult situation. 25. The claimant is a hard worker when he works and gave “his all" for the companies he worked for. The claimant’s takes his work very seriously and as a result can become frustrated when things do not go exactly as he 30 wished. He had a number of “run ins” with the respondent’s mother which were resolved. The claimant did not, however, have a good working relationship with the respondent when she was issuing the claimant with instructions. Claimant and respondent not working well together

[26]When the respondent took control of the business, the claimant’s attitude and approach changed such that he would complain to the respondent and on occasion walk away from her during discussions.

[27]The claimant regarded his working hours seriously such that he would on occasion refuse to take deliveries if that would result in him returning home at a time beyond his working hours. That created problems for the respondent since the claimant was the only delivery driver employed by the business and his refusal to deliver could result in business being lost.

[28]The respondent on occasion could call upon other casual delivery drivers, some of whom were family members but those individuals would not necessarily be available at short notice. If the claimant was unable to deliver, as it was only the respondent left, if she had to do any deliveries the shop would require to close the shop and business would be lost.

[29]The claimant would be critical of the respondent following her assumption of control. On occasion the claimant would become angry and raise his voice at the respondent.

[30]The respondent was concerned about the claimant’s attitude to her which had worsened following her taking control in June and July 2019. She tried to maintain a professional working relationship with him, given he was the only employee in the business and given she relied upon him to carry out the deliveries, but she found the working relationship difficult. The respondent tried to work with the claimant but found his way of working difficult in light of the way he spoke to her and his challenges of her decisions. On occasion when the relationship would be difficult, the claimant would attend work the following day, with no suggestion that there had been any difficulties the previous day.

[31]The working relationship between the claimant and respondent had become increasingly difficult. The respondent believed that the claimant was unhappy taking instructions from her and the working relationship was not good. Claimant tells respondent he has an appointment

[32]On or around the start of July 201 9 the claimant told the respondent that he had a physio appointment to attend. The respondent advised the claimant that he should provide details about the appointment so appropriate arrangements should be made.

[33]The claimant did not provide the respondent with full details about the appointment at the start of July 2019 and provided only general information about an appointment (on an unspecified date). Events of 29 July 2019

[34]On the morning of 29 July 2019 the claimant told the respondent that he had an appointment at 3.30pm later that day. He made it clear that he would try his best to complete the deliveries but that he would not do so if that would result in him being late for his appointment. The respondent did not challenge the claimant as she wished to avoid causing the claimant to become angry given her experience of the claimant in these situations. 30 that he would attempt to deliver the outstanding orders which he was given.

[36]At around 2.30pm the claimant telephoned the respondent. He told the respondent that he was unable to complete all the deliveries before his appointment. He had to return the outstanding deliveries to the shop.

[37]Given the short notice, she would require to make the deliveries herself in the van that the claimant used, which was owned by the business. The claimant had previously been able to use the van for his personal use, but the insurance arrangements had changed such that it could not be used for personal use. The respondent could only complete the outstanding deliveries by using the van since the amount of flowers were such that they would not fit in her car.

[38]The claimant had planned to use the van to go to his appointment and he was angry at having to make alternative arrangements to get to his appointment. He was not happy with the respondent giving him an instruction to return the van which he considered a matter entirely within his control.

[39]The claimant became irate and aggressive during this call when the respondent told him that she required the van to complete the deliveries. He said to the respondent “wit the hell do you expect me to do? How am I supposed to get to my appointment? A fuckin knew you do this to me. Your Ma’s done the same to me before”. At that point the claimant hung up on the respondent.

[40]The respondent telephoned the clamant back a few minutes later to determine what the position was with regard to the orders. The claimant said that he would be returning to the shop with the van. He said that he 30 ended the call. 41 . The claimant returned to the shop around 2.50pm. The discussion between the claimant and respondent was recorded, in part, by the respondent, covertly, as she was concerned at the way in which the claimant had been speaking to her and the fact that she considered the working relationship to 5 be breaking down due to the claimant’s attitude and approach towards her. The respondent was scared given the claimant’s approach on the telephone and she was concerned as she was alone in the shop. She was concerned that the situation could escalate and decided to record the conversation covertly. She did not tell the claimant she was doing so because she io considered, at the time, that it could have escalated matters further. It was a decision she made with short notice and without detailed consideration given the pressure that she considered she was under.

[42]The respondent confronted the claimant about his manner in relation to the 15 discussion and his attitude to her when he returned to the shop.

[43]The respondent had said to the claimant when he returned to the shop: “I kind of don’t get why you are being so attitude-y with me”. He responded by saying “Aye because you knew I had an appointment. That’s how ah said 20 tae ye. I went to try and make the effort and go dae that”. She also said to him “see that attitude it’s not suitable in any way like your raising your voice at me and hanging the phone up. That’s unacceptable”.

[44]That resulted in a discussion whereby the respondent said that she had 25 been fair to the claimant to which he said: “Well aye when it suits you but it doesn’t suit me”. He was told that he was being paid to 3.30 which was when his appointment was. The claimant responded by saying he could not get an appointment anywhere else. His ankle had been hurting him but instead of taking time off work he had continued to do his best.

[45]Following further discussion the respondent said to the claimant that “honestly I can’t have you speaking to me like this. It’s so unacceptable.” The claimant said that “Well this is unacceptable what you’re doing to me." The respondent asked what was unacceptable and he said “You’re saying to me now how ye canny make an appointment at half past 3”. He said “I don’t care. If I need to go to the doctors I need to go to the doctors. If I need an appointment at 2 o’clock then I’ll go at 2 o’clock so that’s it.”

[46]Upon being told that he needed to ask, he said that he told the respondent and then said, in a sarcastic tone: “Am I going to ask you if can I get aff [sic]? Please Miss can I get aff [sic] I’m going to the doctor.”

[47]The respondent told him that is what happens when you are employed. The claimant denied this. The claimant then said: “Right from today ..I’ll work to rule. I’ll come in at half past 9 and work till 330, I do my deliveries that’s what I’ll be doing deliveries. I’ve not got a contract in here, my job when I was employed was deliveries and that’s what I’ll be dain deliveries.”.

[48]He said that someone else should be employed to do the additional tasks but the respondent said that the business could not afford anyone else, to which the claimant agreed.

[49]The respondent then said to the claimant “But I just don’t get like no Tommy see this the way you are speaking to me and stuff it’s unacceptable.”

[50]The claimant said “well it’s unacceptable the way you’re treating me. I bend over.” The respondent said that she was not treating him like anything. 51 . Following a discussion the claimant then says ’Til tell you wit [sic]. I’ll tell you wit [sic]. That’s fair enough. I know the strength of you and I know where a stand in the shop. I know where I stand. I thought I was more than a mere employee I thought I was more a friend... but that not the case I’m only a number like anybody else. So that’s fair enough... its sickened me what you’ve done here because I know you were angry at me cos I was having ato come back I know that for a fact and I was angry at having to go through. I come and go with you and I used to get this from your Ma come and go. I’m a fair person. But see if I get stamped on I am gonna react like you would react.”

[52]Once the claimant’s wife arrived to collect him, the claimant left and made his appointment, in time. Respondent considers claimant’s behaviour was unacceptable

[53]The respondent was upset and concerned about how the claimant had spoken to her and his approach to his work and the lack of respect shown, evidenced not least in his having hung up on her and in the way he spoke to her and what he had said. She considered that the claimant had made it clear that he would not seek time off as he considered it appropriate to decide himself when to take time off, irrespective of the impact upon the business. She was also fearful of the claimant given his attitude and approach. His anger and the way he was speaking to the respondent caused the respondent to be fearful. Claimant does not attend work

[54]At 9.10am the following day, 30 July 2019, the claimant telephoned the respondent to say that he would not be coming to work as his ankle was sore. He said that he was unsure when he would be back to work.

[55]The respondent was concerned as to the impact of his absence upon the business. The respondent knew that historically staff, including the claimant, had been paid when they were absent from work, such as for 30 bereavement or personal reasons.

[56]Deliveries were due to start at 9.30am. The respondent was unable to identify an alternative driver and as a result the business had to be closed for the remainder of the day. That had an adverse financial effect upon the business. Respondent considers initiating disciplinary action

[57]The respondent was concerned about the claimant’s position within the business given the foregoing incidents and the effect upon the business. io She telephoned ACAS for advice as she considered that the claimant’s conduct amounted to misconduct. She was advised to suspend the claimant and follow a disciplinary process. The respondent was concerned that the claimant’s conduct to date had damaged the working relationship. Given the claimant and respondent required to work together closely she was 15 concerned about matters escalating if the claimant were to continue to attend work. For that reason she decided to suspend the claimant.

[58]The respondent had been advised by ACAS to provide the claimant with 3 communications, a suspension letter, an invite to a disciplinary hearing 20 letter and a statement setting out the behaviour that she considered to amount to misconduct.

[59]The first letter dated 30 July 201 9 stated that “Please accept this letter as a formal notification of your suspension of employment with Flora pending a 25 disciplinary hearing with immediate effect. Due to your misconduct and your breach of our verbal contract I invite you to a disciplinary meeting. For your information you are suspended on full pay until further notice. “

[60]The second Tetter dated 30 JuTy 2013 stated that *1 am Tnvittng you to a 30 disciplinary meeting on Friday 2 August 2019 at 1300. The reasons for inviting you to this meeting are insubordination, behavioral misconduct, absent without consent, threats to leave work without consent.” The letter advised the claimant of his right to a companion and that at the meeting the meeting would go through “evidence that has been gathered”. The letter stated: “Please see the attached form with my witness statement”. 61 . The witness statement that was attached to the invite letter set out the fact that the respondent took control of the business following her mother’s ill health and that the claimant decided to continue in his role as delivery driver with other tasks as required. It stated: 61 .1 “Due to unforeseen health concerns of my own, resulting in hospital admission over the period of 2 weeks. I have yet to confirm a written contract. Both parties verbally agreed to continue the previous contractual agreement... At no time has Mr Scott expressed any dissatisfaction with this arrangement. He continued to work his rota of 930 to 330 Monday to Friday. 61 .2 On Monday 29 July 201 9 Mr Scott attended at work as per usual and told me he had a Doctor’s appointment at 330 that day. He further told me he would attempt to deliver all the orders but would be attending the appointment. I made no comment at this time and continued to create orders. 61 .3 At 2pm Mr Scott returned to the workplace and informed me that he would attempt to deliver the outstanding orders which were ready. At 230pm the claimant informed me via telephone that he would be returning with 2 of the orders because he would not have time to deliver them due to the doctor’s appointment. I informed him that if this were the case then I required the use of the business vehicle as there were 8 further deliveries outstanding for that day. 61 .4 At this point Mr Scott began to raise his voice as this would mean he would have to make alternative travel arrangements to make his appointment. He continued to raise his voice stating that he would do the deliveries but if he missed his appointment he would simply not turn up the following day. I questioned the statement, not entirely sure of its meaning. He stated that he just would not come in and terminated the call. 61 .5 At 240pm I re-contacted Mr Scott via his mobile to ascertain whether or not said orders were going to be delivered. At this point he informed me that he would be returning to the shop and would not be doing any of the remaining deliveries and that he had arranged for his wife to collect him from the shop. Meaning he was leaving the work van. 61 .6 At 250pm Mr Scott turned up and I questioned his attitude to myself when we were on the phone. He made no apology and remained hostile stating he was going to be late for his appointment and asked if he was supposed to hand over the van and walk to the appointment. I tried to speak to him however I was spoken over and not allowed to comment on his conduct. Mr Scott continued this pattern of behavior and when I eventually managed to comment on his unacceptable attitude towards me he stated that it was unacceptable that he was going to be late for his appointment. He further went on to state that he could go off sick and that would really leave me “in the shit’. I then questioned him making [the] appointment during working hours and he stated that he did not care and that if he had an appointment at 2 o’clock he would be going. 61.7 I informed him that he would request time off if it was during working hours to which he responded that he told me he had an appointment and that he would not ask for such things he would just be going. He fhnn mnrkn tho cifu tinn cfotinrr mipQ rpn 1 oaf nff 1 nnnH tn II tVI t rrlUvlAvU II TV DHVCttlUf I O l d l i T JJI VdU V 1 1 "OO vQr T r vjVt Xztt t I TWU W go to the doctors”. I informed him that in any workplace that is the correct procedure which should be requested and authorised. 61.8 Mr Scott said that he now knew where he stood and from now on would be working his hours and only doing deliveries and nothing else. Throughout this confrontation Scott continued to raise his voice and showed a lack of respect towards myself and failed to listen when I attempted to say this was not an acceptable attitude. 61 .9 Following this at 915 am on 30 July 2019 I received a phone call to my mobile from Mr Scott. When I answered he stated that he would not be in work today. I asked his reason to which he responded saying his ankle was sore and he was unsure if he would come in tomorrow. I then mentioned this was in breach of contract to which he replied: “what contract?”. I mentioned the verbal contract and he said his ankle was too score and he may not come in tomorrow. 61.10 As a result of this I had to close my business as I could not source an alternative delivery deliver in short notice. 61 .1 1 To surmise [sic] in the previous weeks leading up to the events on 29 July 2019 Mr Scott has shown on several occasions his displeasure in myself taking orders from certain postcode areas. This has resulted in me continually rejecting orders. This then had a negative impact on my business.” Events of evening of 30 July 2019

[62]The respondent’s mother was in hospital at this time and due to the respondent being at hospital during the day of 30 July 201 9 she was unable to deliver the letters to the claimant during the day.

[63]The respondent required the keys for the van given the claimant’s absence as she needed to use the van for deliveries and if she could secure a temporary driver that driver would need the other set of keys. The shop keys were on the same keyring.

[64]The respondent had to spend the day and early evening at hospital and returned around 10pm when she decided to deliver the letters to the claimant’s home and seek the keys for the van. She travelled to the claimant’s home in the respondent’s van. It had been a long Summer’s day and she had planned to attend at the claimant’s home earlier but had been detained at the hospital.

[65]The respondent asked her then boyfriend (and at the time of the hearing her former boyfriend) to attend with her. She asked him to accompany her as she had previously felt intimidated by the claimant. She had not called the claimant in advance as she was fearful of his attitude and anger given the way he had spoken to her on the telephone and in the shop earlier. She wanted to deliver the letters and obtain the keys from the claimant.

[66]The claimant had previously been a serving police officer but had left the service. The claimant’s then boyfriend was a serving police officer. The claimant’s boyfriend attended in his car separately to support the claimant.

[67]When the respondent arrived at the claimant’s house at around 1 0pm it was well lit. She heard the claimant’s voice inside. She could tell he was awake and knocked the door with her then boyfriend behind her.

[68]The claimant had been in the living room on the sofa. He did not have shoes on. He was fully dressed.

[69]The claimant answered the door.

[70]The claimant’s wife had been inside the downstairs toilet and heard someone at the door and stood in the living room where she could hear the discussion between the claimant and the respondent. 71 . The respondent explained that she was there to deliver letters. She asked for the van keys and fuel rewards card which she needed for another driver whom she had secured to cover for the claimant during his absence.

[72]The claimant went into the living room and returned with the keys which he gave to the respondent. The respondent then handed the claimant the letters which she said he should read “in his own time” when they had left.

[73]The respondent asked the claimant if he had any personal belongings in the van that he needed. He said he wanted his sat nav as he did not want any other driver using that.

[74]The respondent and her boyfriend left the claimant’s home and walked towards the van which was parked just across from the claimant’s house, up a slight hill on the other side of the road. As the respondent did so, the claimant had gone into his house to get his shoes to allow him to go to the respondent’s van to obtain his sat nav from the van.

[75]Before leaving the house the claimant opened the envelopes and had a cursory glance at the letters. He saw that he had been invited to a disciplinary hearing which angered him. He then went outside to the respondent’s van to see the respondent. The claimant was angry as he did not understand why he was being invited to a disciplinary hearing and he was angry that the keys were being taken from him.

[76]The claimant accepts in his witness statement that he shouted at the respondent during the exchange that followed. He accepts he was upset and angry.

[77]The claimant reached the respondent as she was opening the van door. She handed the claimant’s sat nav to him. At this point he was just over 1 foot or so from the respondent and the respondent was unable to get into the van given the positioning of her, the claimant and the van door.

[78]The claimant said to the respondent “You’re just a daft wee fucking lassie”, “You and yer fucking maw wouldnae have a shop if it wasn’t for me”, “You’re treating me like fucking shit”. The claimant continually repeated these phrases, with increasing hostility. He was shouting at the respondent.

[79]As the claimant repeated these phrases at the respondent, he was around one foot from her and he gesticulated with his hands which was, reasonably, believed by the respondent and her former boyfriend to be the claimant pointing to the claimant.

[80]The respondent asked the claimant to stop to which the claimant repeated “or what?” on a number of occasions. She continued to ask the claimant to stop and became increasingly fearful for her safety. She was intimidated and fearful and believed that the claimant was going to strike her. 81 . That was a view shared by the respondent’s former partner who decided to intervene and asked the claimant to calm down and walk away. At this point the claimant said that he did not have a problem with the respondent’s former boyfriend but that he had a problem with the respondent, at which point he pointed to the respondent in her face.

[82]While the claimant was speaking with the respondent’s former boyfriend she was able to slip into the driver seat and shut the door so she could drive away. The claimant continued to shout at the respondent as she left in the van. 30 83. During the above altercation the claimant’s wife was at her house. While she could hear some of the exchange, she was unable to hear the entire exchange.

[84]The respondent’s (now) former boyfriend got in his car and at a safe point both the claimant and her former boyfriend their cars stopped and her former boyfriend entered her car to see her. The respondent was in floods of tears and shaking profusely. She told him how frightened she was and that she believed the claimant was about to strike her. She said she could no longer be in the same room as him ever again. The respondent’s (now) former boyfriend told her that if the claimant tried to attend the shop she should not permit him entry and if there was any repetition of matters she should call the police.

[85]During the next day on 31 July 2019, the respondent contacted the police to report the claimant’s threatening behaviour. She was sufficiently fearful of the claimant repeating the behaviour that she concluded this step was necessary. She also required to be prescribed medication given the impact of the claimant’s actions on her mental health.

[86]Also on 31 July 2019 the claimant telephoned the respondent wishing to bring a family member to the disciplinary hearing that had been fixed. The respondent refused that request as there was no legal entitlement to do so and the respondent feared the environment could become even more hostile. The claimant asked that the hearing be postponed to allow time to secure a companion, which the respondent agreed.

[87]The respondent was concerned that the claimant failed to show any remorse for his behaviour the preceding evening when he had telephoned. In her experience it was not uncommon for the claimant to act the next day as if no issue had happened the day before, despite there having been issues the previous day. _____________ Respondent decides that dismissal inevitable

[88]Following a period of reflection during the day of 31 July 2019, the respondent concluded that in light of the claimant’s threatening behaviour on the evening of 30 July 201 9 she considered that the working relationship had fundamentally and irretrievably broken down. She no longer felt safe in the claimant’s company. She believed there to be a very real risk of further aggression by the claimant towards her, particularly if the disciplinary hearing were to proceed. The respondent sought the advice of ACAS again who advised her that in all the circumstances she may choose to summarily dismiss the claimant rather than risk any further contact with the claimant given his conduct towards her. She took the guidance from ACAS into account in reaching her decision.

[89]The respondent considered that the claimant, by his conduct, had fundamentally broken the employment relationship and that there was no alternative to dismissal. She considered that it would have made no difference whatsoever to the outcome had a disciplinary process been followed (a process that she had initially planned to follow in relation to the events preceding the night of 30 July 2019). She considered that doing so was entirely futile as a result of the claimant’s conduct on the evening of July 2019. She decided that the claimant’s employment could not continue. She decided to summarily dismiss the claimant. She was worried that having any further contact (directly or indirectly) with the claimant could exacerbate matters. She feared having any contact with the claimant at all.

[90]The respondent prepared a letter later that day which is dated 31 July 201 9 addressed to the claimant stating “Effective immediately you are dismissed of employment under grounds of gross misconduct. With regards to the invitation to the disciplinary meeting of Friday 2 July 201 9 you are no longer required to attend as this is no longer necessary.”

[91]On 31 July 2019 at around 5.40pm the above letter was received by the claimant together with his personal belongings that had been stored at the shop. Respondent complains to police

[92]On or around 1 August 201 9 the respondent and her then partner attended a local Police Office and provide statements setting out their position in relation to the claimant’s behaviour. The respondent had been told by the police officer with whom she spoke on or around 1 August 201 9 to have no further contact with the claimant and if contact required to be made it should only be via a third party. Claimant appeals

[93]On 2 August 2019 the claimant sent the respondent a letter of appeal. He indicated that he wished to claim unfair dismissal because he argued there had been no reasonable investigation, the disciplinary hearing did not take place, there was no opportunity given to the claimant to respond to the concerns that had been raised and the claimant was unclear what exactly the gross misconduct was. He indicated that he wished the opportunity to challenge the decision and why the decision was taken. He indicated that he intended to continue to challenge the respondent’s conduct and decision to termination his employment due to the unfair treatment and that he believed he had “solid grounds for this to be heard at a Tribunal”. He asked for copies of the investigation, disciplinary and dismissal policy and the evidence that had been gathered to support the dismissal.

[94]The respondent considered the letter and decided that she would not reply. The police had told her to have no contact with the claimant at all. She considered that there was no merit in any the points raised by him in his letter. She had concluded that the claimant’s conduct on the night of 30 July 2019 had destroyed the working relationship. She was terrified or a repetition of the claimant’s behaviour which she considered a real possibility if he were to remain employed by her. She concluded that her safety was paramount and that she would not reply to the letter and would provide no appeal which she considered would have made no difference. Claimant given a Recorded Police Warning, which he disputes

[95]On 6 August 2020 2 police officers attended at the claimant’s home and provided him with a Recorded Police Warning in relation to his behaviour during the evening of 30 July 2019 which they considered, from the information supplied to them, had amounted to an offence in terms of io section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The warning was not a finding of guilt nor a conviction but an alternative to prosecution.

[96]The claimant instructed specialist criminal lawyers to appeal against the 15 police warning. On 1 October 201 9 the claimant was sent a formal response by Police Scotland which stated that the circumstances of the case were fully considered and that there was sufficient evidence for a warning to be issued. The appeal was refused. He was advised that the circumstances that led to the warning would be submitted to the Procurator Fiscal for 20 consideration.

[97]On 5 February 2020 the Procurator Fiscal wrote to the claimant and advised that there was sufficient evidence in law which would justify proceedings being brought but, in the circumstances, it was decided not to bring 25 proceedings.

[98]The claimant disputes the warning. Mitigation

[99]Following the claimant’s dismissal he joined an agency, called People Plus, which would help him secure alternative employment. No jobs had been located.

[100]The claimant is looking for a role with light duties and comparable working hours to that enjoyed with the respondent. 101 . He had applied directly for 2 driving jobs without success.

[102]When he worked for the respondent he earned £1,017.90 gross a month which resulted in £982.03 net. Observations on the evidence

[103]The first evidential dispute I required to resolve was whether or not the claimant was given a written statement of particulars that satisfied the terms of section 1 of the Employment Rights Act 1996. While the respondent believed that the claimant had been given a contract of employment when he had joined the business (and when her mother hand been in control), I found that no complete contract of employment had in fact been issued.

[104]The claimant denied having received a contract and other staff, who had only been employed by the respondent’s mother, had confirmed they themselves had not received a contract. There was no suggestion the claimant was treated any differently to other staff in this regard, with exception of one employee who had a contract with a separate (training) organisation.

[105]The respondent’s evidence was that her mother had told her the claimant had been given a contract but there was no other evidence to support that contention, such as what that contract said or even how it had been created (since no copy ap( ted to exist as following a flood tt was aiiegetf documents had been damaged and destroyed). I consider it more likely than not that the claimant received a letter setting out some key terms of the relationship, such as his rate of pay and hours, but that no written contract of employment had been issued setting out each of the required terms found in section 1 of the Employment Rights Act 1996. As there was no evidence put before the Tribunal as to what any contract that was issued to the claimant actually contained I am unable to say that the document that was issued, and I while I accept a document was issued, there is no evidence to say it complied with the terms of the 1 996 Act.

[106]I find that a document was issued that was intended to contain some (or indeed the main) terms and conditions as I preferred the evidence of the respondent on this point. She had spoken with her mother who confirmed that the claimant had been given “a contract". The claimant himself during later discussions stated that he did not have a contract with the respondent, which suggested that he had in fact been given a contract with the respondent’s mother when she ran the business.

[107]With regard to the working relationship between the claimant and the respondent, the claimant argued that others who had seen the respondent (when she would help her mother in the shop) were able to give evidence that suggested the respondent’s approach to dealing with colleagues was poor at times. While evidence had been led on behalf of the respondent by former colleagues, I did not find that evidence to assist in shedding light on the claimant and respondent’s relationship at the times in question. These witnesses were not present nor employed when the respondent assumed control of the business, which was when matters began to change. They were not able to provide any assistance in relation to the issues to be determined given the times they had seen the claimant and the respondent.

[108]Ultimately, I found that the respondent believed that the claimant was unhappy taking instructions from her and the working relationship was not good.

[109]Another important factual dispute was whether the claimant provided the respondent with full details about the appointment at the start of July 2019 as he asserted. I did not find that credible and instead I found the respondent’s evidence (that only general details as to the appointment had been provided). I find this for the following reasons.109.1 Had the claimant provided the respondent with specific details as to the date and time of his appointment, the respondent would have known that this would mean there would be no one to deliver orders at the latter part of the day. The claimant would require to leave early and without an alternative arrangement business would be lost. As costs and income were both issues at that time for the respondent, the respondent would have taken steps to ensure business was not lost and she would have made alternative arrangements for the day in question. Given the claimant was the only driver, no one else would be available unless someone else was asked to do the deliveries.

109.2 The claimant stated in his conversation with the respondent on 29 July that she knew he “had an appointment’, but he did not say that the respondent knew he had an appointment which required him to leave early and thereby risk losing business which was more likely to have been said if the respondent had known the specifics.

109.3 I considered the respondent’s evidence to be more likely than not to be correct that she had been told of an appointment but not of the specific date and time and I found that more credible than the claimant’s suggestion he showed the respondent the letter of appointment given the nature of the working relationship.

109.4 TTie claimant says In his witness statement that he told the respondent “about the appointment’’ on 8 or 9 July 201 9 but does not say that he told her the specifics of it. While he said in cross examination that he showed the appointment letter to the respondent had that been the case I consider such a matter would have featured in his witness statement given the importance of it.

109.5 The respondent had previously allowed the claimant to leave early and as a result the claimant had worked on Saturday 27 July 2019 which made up for the hours lost. This had been a specific arrangement agreed between the parties. While the claimant says his time on that Saturday was for his appointment, it was in relation to previous early departures that had been agreed with the respondent. That was not connected to the physio appointment.

109.6 The claimant made it clear during his conversation with the respondent on 29 July that “I don’t care. If I need to go to the doctors I need to go to the doctors. If I need an appointment at two o’clock then I’ll go at two o’clock so that’s it’. The respondent stated that he needed to ask but instead had told her he was going. His response was “Am I going to ask can I get aff [sic]? Please Miss can I get aff [sic] I’m going to the doctor” (which was said in a sarcastic tone). When the respondent suggested that time off should be sought rather than taken for granted, the claimant disputed that, since he considered that such time off was ultimately a matter for him and not the respondent. This was evidence of the claimant’s belief that he controlled his working hours and of the reducing respect for the respondent’s instructions and requirements (when it affected the claimant’s personal situation).

109.7 In all the circumstances I concluded that the claimant told the respondent he had an appointment but was not specific as to the time nor date.

[110]A further conflict in evidence was when the respondent telephoned the clamant after he had hung upon her so she could determine what the position was with regard to the orders. The claimant said that he would be 3f> returning to the shop with the van. The respondent said he also said that he would not come into work the next day if he missed his appointment and ended the call. While the claimant disputed saying the latter point, I find the respondent’s evidence more credible. The claimant was extremely angry and resented the respondent’s instruction which impacted upon his arrangement and he had not prepared alternative transport, assuming he could use the van. He considered that he had invested so much into the business and the instruction from the respondent, he considered, was a severe blow and as a result he considered that goodwill had gone and if his ankle remained sore, as it had been on the day in question, I consider that he did say that he would not attend work the following day.

[111]The final dispute that I required to resolve was the key issue in this case that went to the heart of the issues in this case, which was what happened on the evening of 30 July 2019. The claimant and respondent’s evidence in relation to this differed in important ways. The claimant disputed swearing and being so close to the respondent. He denied that he was in any way intimidating. I considered the evidence presented to the Tribunal carefully and at length in relation to the disputed points. Ultimately I found the respondent’s evidence more credible to that of the claimant’s evidence. I accepted the respondent’s evidence. I did so for the following reasons: 111.1 Both agents agreed that the respondent’s demeanour when giving evidence was relevant in assessing credibility. It was clear that while she had received officer safety training (as a former police officer) and was clearly able to look after herself, she was visibly upset when discussing the events in question and very clearly did feel intimidated by the claimant (whether or not that was his intention). I accepted her evidence that she felt intimidated by the claimant and she believed that he was going to strike her. I accepted her evidence that she could not be alone with the claimant and could not work with him again given how she felt. 1 1 1 .2 The claimant accepted that he was angry. In the circumstances there was reason for him to be angry given the fact he was being taken to a disciplinary hearing and it was later in the evening. However, his behaviour towards the respondent “crossed the line” and became inappropriate. His anger manifested itself in the way in which he spoke to the respondent and in his body language. He may not quite have appreciated how the respondent felt but he was very angry and shouted at the respondent and placed her in a state of fear to the extent that she thought the claimant would strike her. 1 1 1 .3 The claimant accepted that he shouted at the respondent. The provocation for the claimant’s anger was the turning up at the claimant’s home at 10pm, which I take into account. The claimant was resentful of the respondent following the earlier discussion when he had been told to return the van. His resentment grew, as did his anger, when he was told to return the keys and he knew a disciplinary process was progressing. 1 1 1 .4 The claimant denied saying the respondent “was a fucking daft wee lassie” and asserted he said the respondent was “acting like a daft wee lassie”. He was unable to explain why he said that to her, other than the fact he was angry. He asserted that he said it when he asked for his sat nav back as he did not want another driver the respondent secured to use it but that does not explain why the respondent’s actions could be compared to “a daft wee lassie”. She was not acting in an immature fashion since she was taking steps to secure the business van so the business could continue trading during the claimant’s admitted absence. In my view the respondent’s evidence as to what was said, which was corroborated by her then boyfriend, --------------------was more likely to reflect what had happened, ----------------------- 111.5 The claimant also denied saying that the respondent would not have a shop were it not for him. This was something the respondent and her former partner said the claimant had said and was something the claimant’s wife said she heard the claimant say. It was something the claimant had said during the exchange in the shop and was likely to be something I find he would have said given the depth of his feelings. 1 1 1 .6 The account of the respondent was confirmed by her now former partner. I found his evidence to be credible. He was candid in his response to questions from the claimant’s agent. Both the respondent and her then partner were both candid in accepting that the claimant was not initially angry and accepted that the claimant had readily returned the keys. They were clear in when the claimant became angry and what he had said and how he had said it. The respondent’s then partner was absolutely clear in his evidence that from what he had witnessed at the time there was no way the respondent could work with the claimant again given his behaviour and its effect and impact it had upon the respondent. 1 1 1 .7 The aftermath of the incident in question had shown how the claimant’s behaviour had impacted upon the respondent. The claimant’s actions, whether intentional or otherwise, clearly had such a destructive effect upon the respondent’s relationship with the claimant. I found the respondent and her former partner’s evidence on this point to be credible. 1 1 1 .8 I also found that the fact the respondent telephoned the police to report the incident formally supported her position. I do not accept that such an action was an attempt to “blacken” the claimant’s character or to avoid going through an employment process. I do not find it r rpriihlfi that tha rasonndant would have none to such lenoths if what she had said was fabricated, as was alleged by the claimant. I found the respondent’s evidence that she went to the police because she was genuinely fearful of her safety to be sincere and candid. She genuinely considered the claimant to be intimidating given the way he had spoken to her and acted towards her. He felt so strongly about what he had done in relation to the business and his personal investment which gave rise to a reasonable apprehension by the respondent that there could easily be a repetition of such behaviour. 1 1 1 .9 The respondent intended to go through a formal disciplinary process. She did not intend to ignore due process. This is seen by the accepted evidence that she took advice from ACAS and had prepared correspondence. She intended to give the claimant a chance to explain his conduct. The events of the evening of 30 July 2019 changed matters, being of such a destructive nature to the relationship and her own personal safety, from the respondent’s perspective, that she felt compelled to report matters to the police and cease all contact with the claimant. Both the respondent and her former partner believed that the claimant’s anger had manifested itself such that they feared the claimant was going to strike the respondent. The respondent was terrified of a repetition of the behaviour. I found that evidence credible. 111.10 The respondent telephoned her GP as a result of how she was feeling because of the behaviour of the claimant and was prescribed medication as a result. That evidence was not challenged. That supported the respondent’s evidence as to the impact of the claimant’s behaviour, rather than the claimant’s evidence. 111.11 I considered the claimant’s wife’s evidence carefully. She supported what the claimant had said and contradicted the rocrxanHont arui. h.Ar frurnor nartnAr’A AuirtAncA in sunnififiant rasnacK < i t Ctr ■ tor T V f l f f U T UQt tr O vYtUvriVv rl I i t t- vwvvvtw• I find that she was not directly present (in the sense of close) when the altercation took place. She may have been at her door or window but she was out of sight of both the respondent and her former partner (neither of whom were able to see or hear the claimant’s wife). She may have heard some of the exchange and was able to recall some of the words the claimant used but I do not find that she heard the whole exchange. The claimant admitted he was shouting and it was a relatively quiet residential area at 10pm on a Summer’s evening but I do not consider, on the balance of probabilities, that she saw and heard the entire altercation which took place across the street at the parked van. The claimant’s wife said she was absolutely certain the claimant said there would be no business if it weren’t for him, something the claimant denied saying. She also accepted that she heard the claimant use the words “daft wee lassie”. She was absolutely certain that the claimant had not sworn, apart from saying “bloody”. Given she was not close enough to the discussion, it is not surprising she did not hear the full extent of the discussion. She was clear that the claimant was “very angry” and that he was shouting. She said that the claimant continued to shout at the respondent as she was driving away and that the claimant was waving his hands when speaking. That supported the respondent’s evidence that she felt he was pointing at her (even if he did not intend to point). 111.12 Balancing all of the factors and from all the evidence presented to the Tribunal I concluded that the respondent’s evidence was more likely to reflect what happened on the evening of 30 July 2019. Law - Unfair dismissal The reason 104 Section 98(2) of the Employment Rights Act 1996 states that “In rjninrryiirMnn O I zvf Qn [q f f2iir 1iflfo lz it io. f A.Z tz TI * rTi i l l ly Wl l\JI LI <sz Ulul t I I0 7til V2T til I V/1T V/U TO rCtll V/T Vt ttQ.tr j It tO IVJi tf IV/ employer to show the reason (or if more than one, the principal reason) for the dismissal and that it is either a reason falling within subsection (2) or some other substantial reason. Section 98(2) states that a reason falls within the subsection if (amongst other things) it relates to the conduct of the employee. 1 05 It is therefore for the respondent to prove the reason for a dismissal and if the reason proved by the employer is not one that is potentially fair under section 98(2) of the Act, the dismissal is unfair in law. Conduct is a potentially fair reason for dismissal. Fairness 106 If the reason for dismissal is one that is potentially fair, the issue of whether it is fair or not is determined under section 98(4) of the Act which states that “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”. 107 The test laid down in BHS v Burchell

[1978] IRLR 379

remains authoritative guidance for cases of dismissal on the ground of conduct. It has three elements (i) Did the respondent have in fact a belief as to conduct? (ii) Was that belief reasonable? (iii) Was it based on a reasonable investigation? These are the questions a Tribunal should address when considering the fairness of a conduct dismissal. It is supplemented by Iceland Frozen Foods Ltd v Jones

[1982] ICR 432

which included the following summary: “in judging the reasonableness of the employer's conduct an [Employment] Tribunal must not substitute its decision as to what the right course to adopt for that of the employer .the function of the Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair." 1 08 Lord Bridge in Pol key v AE Dayton Services

[1988] ICR 1

42, a (then) House of Lords decision, said this after referring to the employer establishing potentially fair reasons for dismissal, including that of misconduct: “in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.” 109 Lord Bridge stated: “an employer having prima facie grounds to dismiss for one of these reasons will in the great majority of cases not act reasonably in treating the reason as a sufficient reason for dismissal unless and until he has taken the steps, conveniently classified in most of the authorities as 'procedural', which are necessary in the circumstances of the case to justify that course of action. Thus,... in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation. If an employer has failed to take the appropriate procedural steps in any particular case, the one question the Industrial Tribunal is not permitted to ask in applying the test of reasonableness posed by s.57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of s.57(3) this question is simply irrelevant. It is quite a different matter if the Tribunal is able to conclude that the employer himself, at the time of the dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under s.57(3) may be satisfied." 110 The Court of Appeal in Taylor v OCS Group Ltd

[2006] ICR 1602

emphasised that tribunals should not consider procedural issues independently of the reason for the dismissal as found to be. The tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. The court cited Union of Construction, Allied Trades and Technicians v Brain

[1981] IRLR 224

: ‘Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity - and that, of course, means common fairness and not a particular branch of the law - and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane.” 111 The recent judgment of the President of the Employment Appeal Tribunal in Gallacher v Abellio Scotrail Ltd UKEATS 0027/19 is relevant. Although this was a case where the Tribunal found the reason for the dismissal was some other substantial reason and not misconduct (as a result of a working relationship breakdown) the President reviews the authorities in this area with regard to cases where no procedure at all is followed. He stated: “The fact that no procedure is followed prior to dismissal would in many cases give rise to the conclusion that the dismissal was outside the band of reasonable responses and unfair. Such procedures, including giving the employee an opportunity to make representations before dismissal and to appeal against any dismissal, are fundamental to notions of natural justice and fairness and it would be an unusual and rare case where an employee would be acting within the band of reasonable responses in dispensing with such procedures altogether.... It is well-established but there may be cases, albeit rare, where the procedures may be dispensed with because they are reasonably considered by the employer to be futile in the circumstances.”

[112]He noted that 4nthat ease the Tribunal expressly stated that 4t did not consider that any procedure would serve any useful purpose and that the Tribunal went further than merely concluding that the procedure would not serve any useful purpose and went on to state that “if anything, it would have worsened the situation”.

[113]He also addressed the claimant’s criticisms of the failure to follow any procedure, particularly whether or not an appeal or mediation could have made any difference but, on the facts, it was found that it was not perverse to conclude that the failure to follow the relevant procedures resulted in the dismissing being fair.

[114]He concluded by stating: “Dismissals without following any procedures will always be subject to extra caution on the part of the Tribunal before being considered to fall within the band of reasonable responses... I am satisfied that this Tribunal did exercise such caution and came to a conclusion that was open to it on the evidence that it heard.” Covert surveillance 1 1 5 Given the issues arising in this case it is necessary to set out the legal position in relation to the use of covert surveillance by the employer that leads to dismissal. The leading case in this area is McGowan v Scottish Water

[2005] IRLR 167

, where the Employment Appeal Tribunal held that covert surveillance relied upon to dismiss may not make a consequent dismissal unfair if it is proportionate. The respondent had hired private investigators to carry out covert surveillance on an employee who was suspected of timesheet falsification which led to dismissal. He complained of unfair dismissal relying upon an alleged breach of the

European Convention on Human Rights article 8

(right to respect for private life). Both the Employment Tribunal and Employment Appeal Tribunal rejected the claim accepting that article 8 was 'engaged* by covert surveillance but held that the key issue then became its proportionality. As the employers were faced with potentially serious fraud and the surveillance went to the heart of the investigation it was not done for external or whimsical reasons, and led to dismissal for dishonesty. The surveillance was therefore not disproportionate. 1 1 6 That case was applied by the Employment Appeal Tribunal in City and County of Swansea v Gayle

[2013] IRLR 768

. A private investigator was engaged following staff complaints the claimant had not been working when 5 he ought to have been. The investigator took footage of the claimant leading to his summary dismissal. The claimant’s claim for unfair dismissal was refused by the Employment Appeal Tribunal. The tribunal, having dismissed the wrongful dismissal claim, found on ordinary principles of misconduct dismissals that the employer had formed a reasonable belief in guilt based io on reasonable investigation. However, they went on to hold that the surveillance had been unnecessarily thorough, leading to a breach of article 8; on that basis, they held his dismissal unfair (though with a 100 per cent decrease in compensation for contributory fault). The Employment Appeal Tribunal overturned this and substituted a finding of fair dismissal. Onus of proof

[117]Although there is an onus on the employer to prove the reason for dismissal, there is no onus on either party to prove fairness or unfairness. 20 The onus in that regard is neutral.

[118]The Tribunal must apply the statutory wording set out in the Employment Rights Act 1996 to the facts that were before the respondent at the time and to the respondent’s actions and decide whether or not the requirements of section 98(4) have been met, taking into account all the 25 relevant factors in deciding whether or not the dismissal is unfair. ACAS Code

[119]The Tribunal is required to take into account the terms of the ACAS Code of Practice on Disciplinary and Grievance Procedures although it is not 30 bound by it. The Code sets out what a normal and fair procedure would entail, involving investigation, hearing and appeal.

Lord Mackay in Polkey said: “if the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the Industrial Tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee.” Human rights

[121]In X v Y

2004 IRLR 625

, Mummery LJ provided the following guidance to Employment Tribunals: “Whenever Human Rights Act points are raised in unfair dismissal cases, an employment tribunal should properly consider their relevance, dealing with them in a structured way, even if it is ultimately decided that they do not affect the outcome of the unfair dismissal claim. The following framework was suggested:a. Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.

b. If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.

c. If it does, is the interference with the employee's Convention right by

d. If it is not, was there a permissible reason for the dismissal under the Employment Rights Act 1996, which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

e. If there was, is the dismissal fair, tested by the provisions of Employment Rights Act 1996 section 98, reading and giving effect to them under the Human Rights Act 1998 section 3 so as to be compatible with the Convention right?"

[122]In Garamukwana v Solent NHS Trust

[2016] IRLR 476

, the employer, in dismissing the employee, relied on photographs taken and stored on the employee's phone. The photographs had been provided to the employer by the police. Applying the approach in X v Y the Employment Appeal Tribunal upheld the Tribunal's decision that article 8 was not engaged because of the close connection between the photographs and the employee's work. The Employment Appeal Tribunal further concluded that even if article 8 was engaged, any interference was justified by the respondent's need to protect the health and welfare of other employees.

Remedy

[123]In the event of a finding of unfair dismissal, the Tribunal requires to consider whether to make an order for re-instatement under section 1 13 of the Employment Rights Act 1996. The matter is further considered under section 116. In this case the claimant indicated that he seeks compensation only. 1 24 The Tribunal requires therefore to consider a basic and compensatory award which may be made under sections 119 and 122 of the Employment Rights Act 1 996. Basic award 1 25 This is calculated in a similar way to a redundancy payment. The basic award is subject to reduction where the conduct of the employee before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to do so (section 122(2) Employment Rights Act 1996). Compensatory award

[126]This must reflect the losses sustained by the claimant as a result of the dismissal. In respect of this award it may be appropriate to make a deduction under the principle derived from the case of Polkey, if it is held that the dismissal was procedurally unfair but a fair dismissal would have taken place had the procedure followed been fair. That was considered in Silifant v Powell

1983 IRLR 91

, and in Software 2000 Ltd v Andrews

2007 IRLR 568

, although the latter case was decided on the statutory dismissal procedures that were later repealed.

[127]The amount of the compensatory award is determined under section 123 and 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”. Reduction of the awards

[128]The Tribunal may separately reduce the basic and compensatory awards under sections 122(2) and 123(6) of the Act respectively in the event of contributory conduct by the claimant. Guidance on the amount of compensation was given in Norton Tool Co Ltd v Tewson

[1972] IRLR 86

. In Nelson v BBC (No. 2)

[1979] IRLR 346

it was held that in order for there to be contribution the conduct required to be culpable or blameworthy and included “perverse, foolish or if I may use a colloquialism, bloody minded as well as some, but not all, sorts of unreasonable conduct.” Guidance on the assessment of contribution was also given by the Court of Appeal in Hollier v Plysu Ltd

[1983] IRLR 260

, which referred to taking a broad, common sense view of the situation, in deciding what part the claimant’s conduct played in the dismissal. The Employment Appeal Tribunal proposed contribution levels of 100% (employee wholly to blame), 75% (employee mainly to blame), 50% (employee and employer equally to blame) and 25% (employee slightly to blame). That was not, however, specifically endorsed by the Court of Appeal and there is no reason a Tribunal has to follow these guidelines as they are a matter of common sense. The more serious and obviously 'wrong' an employee’s conduct, the higher the deduction is likely to be.

[129]A Tribunal should also consider whether there is an overlap between the Polkey principle and the issue of contribution (Lenlyn UK Ltd v Kular

UKEAT/0108/16

[130]Thus if the Tribunal finds that the employee has, by any action, caused or contributed to his dismissal, it shall reduce the amount as it considers just and equitable. There need be no causal connection between the dismissal and the conduct when a Tribunal considers a reduction to the basic award.

[131]A deduction for contributory fault under s 123(6) can be made only in respect of conduct that persisted during the employment and which caused or contributed to the employer's decision to dismiss. It follows that the employee's conduct must be known to the employer prior to the dismissal.

[132]As the Court of Appeal emphasised in Parker Foundry Ltd v Slack [1 992] IRLR 1 1Jn deciding whether to reduce compensation it is only the employee's conduct which can be taken into account; the conduct of the employer, and the treatment of other employees, is irrelevant. In Parker Foundry, the employee was found to have been unfairly dismissed on procedural grounds following a fight. The tribunal made a reduction of 50% to reflect contributory conduct. He complained on appeal that the tribunal had not, upon an assessment of contributory conduct, taken into account the culpability of the other pugilist who had only been suspended. The Employment Appeal Tribunal held that the treatment of the other was relevant to the issue of fairness (in particular, upon the question of consistency) but only the employee's actions and not those of other employees or the employer were relevant to the question of contributory conduct.

[133]In Nelson v BBC (No 2)

[1979] IRLR 346

the Court of Appeal said that three factors must be satisfied for the tribunal to find there to be contributory conduct. The first of these is that the conduct must be culpable or blameworthy. The second is that it must have caused or contributed to the dismissal. The third is that it must be just and equitable to reduce the award by the proportion specified.

[134]In Steen v ASP Packaging Ltd

[2014] ICR 56

(Langstaff P presiding) the Employment Appeal Tribunal stated that the application of those sections to any question of compensation arising from a finding of unfair dismissal requires a Tribunal to address the following:(1) it must identify the conduct which is said to give rise to possible contributory fault;

(2) having identified that it must ask whether that conduct is blameworthy —the answer depends on what the employee actually did or failed to do, which is a matter of fact for the Tribunal to establish and which, once established, it is for the Tribunal to evaluate;

(3) the Tribunal must ask for the purposes of section 1 23(6) of the Employment Rights Act 1996 if the conduct which it has identified and which it considers blameworthy caused or contributed to the dismissal to any extent. If it did cause or contribute to the dismissal to any extent then the Tribunal moves on to the next question;

(4) this is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. It will likely be an error of law if the Tribunal simply states its conclusion as to contributory fault and the appropriate deduction for it without dealing with these four matters. The court said that there is no need to address these matters at any greater length than is necessary to convey the essential reasoning and of its nature a particular percentage or fraction by which to reduce compensation is not susceptible to precise calculation but the factors which held to establish a particular percentage should be, even briefly, identified.

[135]In Steen v ASP Packaging Ltd

[2014] ICR 56

(Langstaff P Presiding) a finding of 100% contributory conduct was said to be an unusual finding but a permissible finding. A Tribunal should not simply assume that because there is no other reason for the dismissal therefore 100% contributory fault is appropriate. It may be the case but the percentage might still require to be moderated in the light of what is just and equitable: see Lemonious v Church Commissioners

UKEAT/0253/12

. Failure to provide a written statement of particulars

[136]In terms of section 38 of the Employment Act 2002, if an employer has failed to issue a written statement of particulars, it is open to the Tribunal to make an award of 2 or 4 week’s pay. That award can only be made where another relevant claim (such as unfair dismissal or wrongful dismissal) has been successful. Wrongful dismissal

[137]Under the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1 994 a claimant can seek payment of contractual sums due which are outstanding upon termination of employment. That can include payment of notice pay. There is a cap of £25,000 in respect of this claim. 1 38 Notice to be given to an employee must not be less than the statutory minimum which is set out at section 86 of the Employment Rights Act 1996, which is 1 week for complete year of employment, up to a maximum of 12 weeks following 12 complete years’ service and beyond.

[139]If an employee is summarily dismissed without notice, and the employee claims notice pay at Tribunal, the onus is on the employer to show, on the balance of probabilities, that the employee fundamentally breached the contract of employment (as a question of fact), and is thereby not entitled to notice pay. 1 40 If the Tribunal is not satisfied that as a matter of fact the employee did fundamentally breach the contract of employment, notice pay would be payable. The onus is on the respondent to show that the conduct in question was, as a matter of fact, of such a nature so as to entitle the respondent not to summarily dismiss.

[141]Any sums earned by the claimant during the notice period require to be taken into account in the assessment of the sums due to the employee. This is because the claim for wrongful dismissal (pay during the notice period that ought to have been given) is a claim for damages for breach of contract. Submissions from claimant

[142]The claimant’s agent provided written submissions which he spoke to, which are on the Tribunal’s file. The written submissions have been taken into account fully. The following is, necessarily, a summary of the submissions.

[143]It was argued that the tape recording that was played to the Tribunal provided an insight into the working relationship between the parties. It was not representative of the norm but showed the stress the parties had worked under. The claimant’s agent submitted that the snapshot of the exchange demonstrated no shouting, swearing or abusive language despite this being illustrative of a most heated exchange between the parties. He submitted that any anger on the part of the claimant needs to be contextualised given the respondent’s precedented and peremptory denial of the use of the van to the claimant.

[144]It was submitted that taking events at their highest, the reason for the claimant’s summary dismissal was gross misconduct, but that was the respondent’s subjective assessment of what happened, if the Tribunal were to prefer the respondent’s evidence. The claimant’s agent argued that there was a sliding scale from shouting to swearing, culminating in physical intimidation and invasion of personal space- if that is accepted. It was submitted that the relationship had not broken down and alternatives could be explored, perhaps following an apology.

[145]The claimant’s agent noted that the claimant conceded he was angry but that anger never escalated to aggression or intimidation. The anger has to be contextualised given the recent unprecedented denial of the company van.

[146]The claimant’s agent noted the way the respondent gave evidence and invited the Tribunal to take into account her demeanour and resilience. She was capable of standing up to the claimant. It was submitted that the corroborative evidence of co-workers' working relationship with the respondent, while historical, was all we have. It was submitted that those witnesses showed that the respondent could be confrontational in her manner. The respondent’s account was implausible. If the claimant was so abusive to her and physically intimidatory, her (now former) partner a 6 foot 1 policeman would have intervened. He did nothing (it was submitted).

[147]It was submitted that while the respondent’s evidence is corroborated by her former partner, the claimant’s account is also corroborated - by his spouse. The claimant’s agent stated that the respondent’s former partner should not be given any advantage because he is a serving police officer. The claimant’s evidence was corroborated by his spouse and there was some historical evidence which was arguably corroborative of the personalities involved and of the respondent’s confrontational demeanour 1 48 The claimant’s agent suggested that the reason for the respondent’s fabrication of the events was to ex post facto rationalise the unfair dismissal and blacken the claimant’s character and exaggerate the respondent’s level of fear. It was submitted that the respondent leveraged the criminal complaint to pre-empt and deflect criticism for abandoning a fair disciplinary process. The respondent’s complaint to the police was, it was submitted, bogus and the accusations about the claimant’s conduct were not remotely credible. The respondent did not report events to the police until the next day and it took a few days to attend the police office.

[149]Further, it was asserted that the respondent’s asserted fear was not a justifiable reason for her abandoning a fair disciplinary process. She did not consider reasonable alternatives whereby her apprehended fear could have been managed. Matters could have been delayed, allowing cooling off, matters could be deleted to a third party, there could be a virtual hearing or written submissions. A fair and proper process could have been achieved. If there was any credence in her asserted fears, it was perfectly possible to conduct a hearing in civilised surroundings with someone to steady proceedings. There would have been no issue of her personal safety at risk. There was no good reason for discontinuing the process.

[150]The claimant’s agent argued that even if there was a valid reason to dismiss, the failure to follow a fair process resulted in the dismissal being unfair. Natural justice was important and had been denied to the claimant.

[151]The claimant’s agent argued that there were aspects of the respondent’s behaviour which could result in there being an ’’unconsummated constructive dismissal’’, namely the covert recording of the claimant and the unwarranted home visit at 10pm.

[152]The respondent had failed to respect the claimant’s privacy and thereby breached his human rights. The respondent should have called in advance and attended at a sensible time of day. A family member could have returned the keys.

[153]The claimant’s agent accepted that if it was found that following a fair procedure was utterly futile, the dismissal would be fair but that is the exception. It was argued that dismissal was not inevitable and if a fair process had been followed dismissal could have been avoided. 1 54 The claimant’s agent argued that even for a small company with limited resources, where there is no alternative to such an intimate working relationship, an employer cannot be allowed to arbitrarily dismiss on the basis of a wholly subjective assessment of their asserted impossibility of having continuing working relationship since otherwise due process would be displaced by emotion. There needs to be a good reason to dismiss objectively assessed by a fair evaluation of evidence. 1 55 The claimant’s agent argued that the claimant could equally argue that dismissal was an inevitability given the respondent’s conduct such that the only live issue is that of compensation. The relationship of mutual trust and confidence had broken down not because of the claimant’s conduct but because of the respondent’s conduct in making covert phone recordings to seek to trap him. The claimant’s agent stated that even if the constructive dismissal “had not been consummated” the claimant could have resigned mid process if he had known of the respondent’s conduct. His privacy was disrespected. By then his working environment was rendered so difficult he might have justifiable and reasonably considered constructive dismissal.

[156]The claimant’s agent submitted that Polkey should not mean any financial award should be reduced in circumstances of this case.

[157]With regard to contribution, the claimant was justifiably angry. He was entitled to be so and he was emotional. He had not invited these circumstances on himself. There had been no misconduct and there was no fully reasoned decision as to why the claimant was summarily dismissed. He had ostensibly been dismissed due to not completing his full shift due to attendance at a medical appointment when notice had been provided. The claimant conceded that perhaps an apology would have been given had the disciplinary process taken place.

[158]With regard to mitigation, the claimant had joined an agency and applied for a few jobs. He considered there to be little point given he did not have a reference from the respondent, albeit he had not sought one. It was not reasonable to ask for a reference given the circumstances.

[159]While no evidence had been led on the point, the claimant had not been in receipt of any relevant benefits.

[160]With regard to the claim for wrongful dismissal/breach of contract, there was no conduct by the claimant that entitled the respondent to terminate the contract without notice. Respondent’s submissions

[161]The respondent’s agent argued that the outcome of this case would turn on the Tribunal’s assessment of what happened on 30 July 2019. He submitted that if the Tribunal prefers the claimant’s evidence as to what happened, the dismissal would be unfair and wrongful but if the respondent’s 5 position was accepted, it was likely that the dismissal would have been fair and not wrongful. Counsel referred to the claimant’s acceptance in answer to a question by him that if he had behaved in the manner alleged that would have been completely unacceptable and something for which he would expect to be dismissed. Counsel submitted this was tantamount to an io admission that his conduct, if established, amounted to gross misconduct.

[162]On any view, it was argued that conduct of the type described by the respondent’s witness - shouting and swearing at an employer close to their face causing the reaction it did was gross misconduct. Whatever the fairness 15 or otherwise of the procedure followed, there can be little doubt that the claimant was 100% to blame for his dismissal. 1 63 The respondent was clear in her evidence, it was submitted, as to the reason for the claimant’s dismissal. While the correspondence is not clear, 20 the claimant must have known that the only thing that changed was the events of the night in question.

[164]While the events of 29 July are not directly relevant to the dismissal, they are instructive with regard to an interpretation or analysis of what 25 happened following day.

[165]The respondent’s agent argued that despite the claimant’s protestations during evidence that he respected the respondent as his employer it was abundantly clear even on his own evidence that admittedly 30 when in anger he uses to her language that is derogatory and unacceptable. The claimant had made fun of the respondent and did not hold her in high regard.

[166]The context is important and it is abundantly clear that the events of 29 July made the claimant very angry. In reality the claimant was only asked to bring back the van, which was something he had to do anyway. His anger stemmed from being told to return the van, which belonged to the respondent, to the respondent as she needed to use it to complete the deliveries. That was a reasonable management request. The claimant’s response to that request was out of proportion. That was festering the following day and contributed to his behaviour. It clearly incensed the claimant further. 1 67 The claimant’s calling in sick must be taken in context of the previous day’s interactions where he said made it clear that he knew that if he were to go off sick the respondent would be “placed in the shit”. Providing 20 minutes notice of absence is not reasonable. It was argued that while the claimant may genuinely have had a sore ankle which could affect his duties, the respondent did reasonably have a concern as to the veracity of that action. 1 68 The context for the respondent is also relevant since the respondent’s mother was in hospital undergoing a significant operation on day in question. That explained in some way why the respondent attended at the claimant’s home at the time she did.

[169]With regard to whose account should be preferred, the respondent’s agent argued that the respondent’s evidence was more credible. The respondent’s demeanour in the witness box supported her position; the impact of giving evidence about the events that night was visible, and the respondent was clearly very distressed. Her reaction was obviously genuine. 30 She was fearful of the claimant.

[170]The respondent’s former partner’s evidence was credible. It was submitted that large aspects of his account were not challenged and unlike the claimant’s witness, there was no current relationship providing a reason to support that person’s evidence. It was also submitted that the claimant’s wife’s evidence supported in large measure what the respondent’s former partner said in his evidence. Substantial elements of her account were closer to what the respondent’s case was than the claimant’s. For example the claimant categorically denied saying that the respondent would not have a business were it not for him and yet the claimant’s spouse was adamant he did say that at the time. While she denied the claimant swore, she said he was very very angry indeed. She also had the participants in broadly similar position to the position of both the respondent’s witnesses.

[171]When the evidence is looked at in the round, the Tribunal ought to prefer the evidence of the respondent as corroborated by her former partner, a serving police officer who has no interest in the proceedings. He is more aware than most of the consequences of giving false evidence under oath. 1 72 It was submitted that if the Tribunal accepts the respondent’s evidence as a result of Polkey and contribution, it would not be just and equitable to award any compensation.

[173]The respondent’s agent’s principal position was that following any procedure was utterly futile because dismissal was inevitable. This was a sole trader where the owner of the company formed a view that it was utterly inconceivable that she could continue to work with the claimant. If the claimant was prepared to behave the way he did in the presence of her then boyfriend, there was no telling how he might conduct himself in the shop when she was alone with him. That is the background she says that makes it utterly impossible to continue to work together. Following a procedure would have been utterly futile and taking account of size and resources, it was fair to dismiss. 1 74 Even if there should have been some form procedure, dismissal would have been inevitable and a procedure would have concluded within 2 weeks.

[175]The respondent’s agent argued that the respondent’s actions of recording the claimant are not relevant to events that occurred on the night in question since the claimant was not aware that he had been recorded by then.

[176]The respondent’s agent submitted that the respondent was dealing with difficult circumstances. She went round to the claimant as soon as she could. 1 77 With regard to mitigation, it was submitted that the claimant manifestly failed to take reasonable steps to mitigate his loss. In reality he had only actually applied for 4 jobs within 15 months. No evidence had been led about the agency he joined and what it had done for him. Given the preponderance of delivery driver jobs at the moment it was not reasonable for the claimant not to have done more.

[178]If the Tribunal found that a written statement had not been produced the additional award should be 2 weeks not 4 weeks since the respondent was taking steps to put a new contract in place. Evidence that had not been challenged. This was not a case whereby the respondent had a complete disregard for her obligations. Claimant’s agent’s response

[179]With regard to mitigation, counsel asked how many agencies a claimant would need to join in order to mitigate loss: surely one is enough. 1 80 With regard to the asserted self intertest of the respondent’s former partner, counsel argued that he had boxed himself into a corner and knew the risk of departing from his evidence. 1 81 The claimant’s agent also submitted that the claimant’s threatening to work to rule was not misconduct and the claimant’s behaviour was shown by the recording to be at its worse. That showed how the claimant reacted in moments of extreme stress and anger. The claimant’s actions should be viewed in the context of a gross invasion of his privacy and home life. It was an emotional situation. Decision and reasons 1 82 I shall deal with each claim in turn. Unfair dismissal Potentially fair reason 1 83 The first question is what the reason for the dismissal was and whether this was one of the potentially fair reasons. It is for the respondent to prove what the reason was. The claimant was dismissed because of the way he acted towards the respondent. The reason for the dismissal was clearly matters relating to the claimant’s conduct, a potentially fair reason.

[184]The reason for the dismissal is the set of facts or beliefs in the employer’s mind that cause the employer to dismiss the claimant (see Abernethy v Mott

1974 IRLR 213

). This must be determined from the evidence presented.

[185]From the evidence before the Tribunal, I am satisfied that the respondent has shown that the reason for the claimant’s dismissal was his conduct towards her principally on the evening of 30 July 2019. The respondent has discharged the onus of showing that the reason for the claimant’s dismissal was a potentially fair reason, namely relating to the claimant’s conduct. Genuine belief

[186]The next question is whether the respondent genuinely believed that the claimant was guilty of misconduct. In this case given the findings of fact and given the respondent had witnessed the claimant’s conduct, I consider that the respondent did genuinely believe that the claimant had been guilty of the conduct in question. Honest grounds

[187]Was the belief honestly held? I accepted the respondent’s evidence. She genuinely believed on an honest basis that the claimant was guilty of the conduct that led to his summary dismissal. Reasonable investigation? 1 88 The claimant was the only employee of the respondent who was a sole trader. The respondent witnessed the matters herself. This was an unusual case and I take account of the size and limited resources of the respondent. The question is whether as much investigation as was reasonable was carried out given the facts of this case. 3(1

[189]Some employers could well have invited the claimant to a meeting to explain his position and conduct but I find that an equally reasonable employer in the exceptional facts of this case could reasonably conclude that there was no other investigation that was required given the circumstances. The respondent's position was clear given the situation she faced.

[190]In the exceptional circumstances of this case I find that the respondent acted fairly and reasonably with regard to the investigation in question. The respondent knew exactly what it was that happened (which the Tribunal accepted did happen as a matter of fact) and no explanation from the claimant would have altered the outcome with regard to the facts. 1 91 The investigation that was carried out in this case, from the information before the respondent at the time, was reasonable. It fell within the range of responses open to a reasonable employer. Was dismissal within the range of responses open to a reasonable employer?

[192]The respondent accepted that the claimant’s conduct that led to the disciplinary hearing being fixed was not itself gross misconduct. The turning point was the claimant’s conduct towards the respondent on the evening of 30 July 2019 when the claimant’s actions placed the respondent into a state of fear and alarm. She was fearful for her safety and of repetition which she considered likely if she were to contact the claimant in any way again. The respondent concluded that his actions on that evening resulted in her being unable to work with the respondent at all. The conduct in question clearly went to the root of the employment relationship.

[193]I accept that the conduct in question that caused the dismissal was prima facie gross misconduct. While it did not occur within working hours, it was conduct between the claimant and respondent while the respondent was delivering correspondence related to work and when she sought the keys for the van. The fact the conduct amounted to gross misconduct did not, however, automatically mean dismissal was a formality or that it was fair. I considered this carefully. 1 94 Both parties agreed that the real issue in this case was whether or not this was an exceptional case where it could be said that following a fair procedure was absolutely futile such that the respondent acted fairly and 5 reasonably in the circumstances. The claimant argued that natural justice required a fair process to be followed. The respondent argued that this case fell within the exceptions permitted by the authorities whereby in limited cases a dismissal can be fair even although the normal procedure that should be followed in misconduct cases had not been followed.

[195]I have considered this matter very carefully given the importance of procedure and natural justice. As Choudhury P in Gallacher v Abellio Scotrail Ltd

UKEATS/0027/19

emphasised, any case where the employer argues that to have gone through procedures would have been futile must be 15 examined carefully and it is only in rare cases would such an argument succeed. I have examined the facts in detail and considered the evidence presented to the Tribunal.

[196]The respondent was clear from the way in which the claimant acted 20 towards her and her fear of being in proximity to the claimant that there was no way she could work with the claimant. From the facts that I have found, the claimant’s relationship had resulted in the working relationship having fundamentally broken down as a result of the claimant’s conduct. It had irretrievably broken down. The respondent was clear in her evidence, which 25 I accepted, that she found the claimant intimidating and was unable to work with him. She was fearful of him. The nature of the business was such that the parties would require to work in close proximity to each other. The claimant was the only employee and the respondent was his employer. The respondent concluded that there was never any prospect of that relationship 30 working again. ----------------------------------------------------------

[197]Going through any disciplinary process would have increased the risk genuinely and reasonably believed by the respondent to exist. She was fearful of repetition of the behaviour on the relevant night. The claimant had become very angry. The respondent was clear and in her view no amount of cooling off (or apology) would have made any difference to her. Despite the passage of time, the concerns that existed then still existed and she remained unable to work with the claimant, no matter what he said or did after that date. There was nothing put to the respondent in cross examination that would have altered her position. Any contact between the parties, whether direct or indirect, could have exacerbated matters. That was not an unreasonable conclusion for the respondent to reach. The action by the respondent in this regard falls within the range of responses open to a reasonable employer. While some reasonable employers might have undertaken some form of procedure, it is my judgment that an equally reasonable employer in the specific circumstances of this case could equally reasonably conclude that there was no point at all going through any further process.

[198]The question the Tribunal requires to answer is whether in all the circumstances, taking account of size resources, equity and the merits of the case the respondent acted fairly and reasonably in dismissing the claimant by reason of misconduct. I must look at what the respondent did do (and not what it could have done). I must also look at what the respondent actually knew at the time.

[199]I considered the submission by the claimant’s agent that it could not be fair to dismiss without any procedure, even in these circumstances since that would result in emotion taking precedence to due process. The issue is whether or not the particular employer on the facts acted fairly and reasonably. The question is not whether the Tribunal would have dismissed but whether a reasonable employer could have so acted given the circumstances facing the employer.

[200]The authorities in this area underline the importance of carrying out a fair process and procedure is an important part of a fair dismissal and I take that into account. They do recognise that there are exceptional cases where the failure to follow a process that would ordinarily be expected in such cases could result in a fair dismissal and this should be considered very carefully.

[201]In this case it was absolutely clear that the outcome, the claimant’s dismissal, was inevitable. No amount of discussion or even an apology or contrition on the claimant’s part, would alter the fact that the respondent genuinely and reasonably believed that her safety was at risk if she were in any proximity to the claimant. She genuinely and reasonably believed that it was impossible for her to work for him in any safe way. Her perception was reasonable, even if the claimant disagreed with it, and even if the claimant offered to seek to change his approach (which was not suggested).

[202]Ordinarily a breach of procedures would render a dismissal unfair but in this case the circumstances are exceptional such that the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee from the information before her. The claimant’s misconduct was of sufficient seriousness and the impact upon the working relationship sufficiently catastrophic that the respondent acted reasonably in dismissing the claimant.

[203]In assessing the fairness of the dismissal I take into account the actions of the respondent throughout the process. The respondent’s actions included the respondent’s covert recording of the claimant without his consent, which was done because the respondent was fearful of what he might say and took a decision to record his comments. She believed she was protecting her health and safety by taking that action. That was not something that was known to the claimant at the point of dismissal but it is a factor I considered in reaching a conclusion on the fairness of the dismissal. I did not consider the respondent’s actions in this regard such as to render the dismissal unfair. The respondent made a decision quickly to do so without fully thinking through the consequences, and without telling the claimant she was doing so. She believed that she was at risk and thought that recording the conversation (and not telling the claimant) would assist her. I do not find IQ IS 3a that the covert recording of the claimant in these circumstances resulted in the dismissal of the claimant by reason of his conduct being unfair.

[204]Equally I took into account the respondent’s attendance at the claimant’s home at 1 0pm on 30 July 201 9. That was relevant. The respondent attended to deliver the letters and collect keys. She attended at that time as this was the first opportunity she could do so upon her return from hospital (where her mother was) and she needed to obtain the keys. It was also a Summer’s evening and the information before the respondent suggested that the claimant was around. The fact it was 10pm in the evening did not justify the claimant’s reaction but I do take the time of the respondent’s visit into account in assessing the fairness. I do not consider that the respondent’s actions in this regard rendered the dismissal unfair.

[205]I also took into account the claimant’s argument that his human rights had been breached on the facts. I considered the guidance contained in X v Y. I considered that the circumstances of the dismissal do not fall within the ambit of one or more of the articles of the Convention. The claimant was dismissed because of his conduct towards the respondent. There were parallels with Garamukwana v Solent NHS Trust

[2016] IRLR 476

since in that case the employer, in dismissing the employee, relied on photographs taken and stored on the employee's phone and article 8 was found not to be engaged because of the close connection between the photographs and the employee's work. In this case the actions of the respondent were solely in relation to the business and not connected to the employee’s privacy as such.

[206]While that would result in the Convention rights not requiring to be considered, I proceeded to consider the point nonetheless because I recognised that the conduct of the claimant did not occur during working hours and there was at feast an argument that his right to privacy had been engaged.

[207]The second question posed within the authority was whether the state has a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer. I 5 shall assume that it does for current purposes.

[208]If it does, is the interference with the employee's Convention right by dismissal justified? I find on the facts of this case that any interference with the claimant’s right to privacy was justified. There were legitimate reasons for the respondent’s actions. She required to deliver correspondence and obtain io the keys for the van. She did so in a reasonable and proportionate way.

[209]The reason for the dismissal (the claimant’s conduct) did not involve any unjustified interference with a Convention right and the dismissal is fair, tested by the provisions of section 98 of the Employment Rights Act 1 996.

[210]I also took account of the fact that the reason why the respondent 15 dismissed the claimant in this case was for matters relating to the claimant’s conduct. Ordinarily the ACAS code should be followed and I had regard to that. There can be exceptional circumstances where a failure to follow the ACAS Code (and a procedure that one would ordinarily expect to be followed prior to dismissal) does not render the decision to dismiss unfair in the 20 circumstances, carefully considering the context and the statutory tests. The Foreword to the Code states that the Code provides “basic practical guidance” and notes that a failure to follow the Code does not render the employer liable to proceedings but it will be taken into account in relevant proceedings. I have taken it into account but in the exceptional circumstances 25 of this case I have concluded that the respondent acted reasonably in not following its provisions.

[211]The size and resources of the respondent is also a relevant consideration. This was a single employee business who was employed by a 30 private individual. There were very limited resources. The respondent sought the advice of ACAS and was intent on following a disciplinary process in relation to the claimant’s conduct until the evening of 30 July 2019 when the respondent concluded that she could not under any circumstances have any contact with the claimant. That decision was also taken having checked the position with ACAS who suggested the respondent could summarily dismiss the claimant given the issues facing the respondent. Whilst the police warning was not before the respondent at the time of dismissal (and not therefore relevant in assessing the fairness or otherwise of the respondent’s actions), the fact the police issued a warning (and the claimant’s appeal was refused) shows that the respondent’s actions were not without foundation. The police response was not known at the time of dismissal and does not feature in the assessment of the question of the fairness of the dismissal (and I did not therefore consider it when assessing the fairness of the dismissal). 21 2 I did not consider the claimant’s agent’s argument that there had been an "unconsummated” constructive dismissal in this case to be meritorious. The respondent’s actions were not perfect but that is not the test in connection with the unfair dismissal claim. I considered the procedure that was carried out in this case that that led to the dismissal to be a procedure that a reasonable in employer in all the circumstances could follow. In other words, the decision not to go through some form of procedure was a decision that a reasonable employer could have made on the facts as found. I do not find there to have been any breach of contract by the respondent (whether of any express or implied term). The claimant was not constructively dismissed. He did not resign. No such claim is before the Tribunal. The claimant was dismissed by the respondent and the dismissal was by reason of his conduct.

[213]I took a step back to assess whether in all the circumstances the decision to dismiss was fair and reasonable in all the circumstances, taking account of the size of the respondent, her resources, equity and the substantial merits of the case.

[214]The respondent is a sole trader. It was only the claimant and the respondent in the business. As a result of the claimant’s conduct to which the respondent was subject, the respondent feared for her safety. Her fear was reasonable. She took advice from ACAS and considered matters, contacted the police and concluded that there was no alternative to dismissal given what she believed to be a threat to her safety. She concluded that it would be pointless to go through a disciplinary process since nothing the claimant could so or do would alter the fact that because of his conduct, the relationship could not be fixed and under no circumstances could she work with him.

[215]Having carefully reflected on the information before the respondent and in the exceptional circumstances of this case I find that the respondent acted fairly and reasonably in dismissing the claimant by reason of his conduct, taking account of the size of the respondent, its resources, equity and merits of the case. The claimant’s dismissal was accordingly fair. Polkey

[216]If the dismissal had been unfair I would have accepted the respondent’s submissions with regard to Polkey and found that dismissal was inevitable and that a 100% reduction under Polkey would be appropriate 21 7 Following any procedure would have been utterly futile and would not have altered the outcome in this case. Moreover the police warning that was issued a few days after the dismissal (and the refusal of the claimant’s appeal against this) together with the advice the respondent received from the police, to avoid coming into any contact with the claimant, support the finding that dismissal was inevitable. There would have been no prospect of the parties working together and the claimant’s dismissal would have ensued, regardless of any procedure followed. 1 2U 21 8 There was nothing suggested by the claimant’s agent whether during submissions or that was put to the respondent in evidence that would have shown any outcome (other than dismissal) was at all likely. This was an exceptional case given the fact the respondent was a sole trader and the circumstances facing her. A 100% reduction would have been just. Contribution

[219]Finally, if the dismissal was unfair I would also have considered the parties’ submissions on contribution. I do not consider the claimant’s submissions in this regard to be meritorious and I would have preferred the respondent’s submissions. The claimant’s conduct was the sole cause of his dismissal from the facts I found which were identical to those the respondent gave in evidence as to the claimant’s conduct towards her. The claimant’s actions resulted in the respondent feeling intimidated. He was as a matter of fact guilty of gross misconduct which on the facts justified his summary dismissal.

[220]I consider the steps set out in Steen v ASP Packaging Ltd

[2014] ICR 56

. Firstly, the conduct which is said to give rise to possible contributory fault was the action of the claimant that led to his dismissal, principally his actions towards the respondent on the night in question which led to the respondent being fearful for her safety and concluding that she could no longer work with the claimant. This was conduct I have found to have happened as a fact given I preferred the respondent’s evidence to that of the claimant.

[221]Secondly, having identified the conduct, I ask whether that conduct is blameworthy. The claimant was to blame on the facts. While there may have been reason for him to be angry, the way he reacted was entirely inappropriate, both in terms of the words he used and his behaviour.

[222]For the purposes of section 123(6) of the Employment Rights Act 1996 the conduct caused the dismissal. It was the only reason for the dismissal.

[223]The final question is to what extent the award should be reduced and to what extent it is just and equitable to reduce it. It would not have been just and equitable to award the claimant any compensation and the basic and compensatory awards would have been reduced by 100%. He was 100% to blame for his dismissal in my judgment on the facts I have found. The warning the police issued (and the refusal of the appeal against this) together with the advice given to the respondent support this contention that the claimant’s conduct would have rendered it just and equitable to reduce any compensation to nil. This would have been an exceptional case whereby it would not have been just and equitable to award the claimant any compensation given the nature of the claimant’s conduct. Wrongful dismissal

[224]In a wrongful dismissal claim, the onus is on the respondent to show that the claimant as a matter of fact repudiated the contract of employment, in other words did something to fundamentally breach the contract which would allow the respondent to terminate the contract without notice. This is a different legal test with different considerations to that pertaining to unfair dismissal.

[225]The claimant’s actions that led to his dismissal (as a matter of fact) were of such a nature that entitled the respondent to dismiss him summarily. I found that the claimant did carry out the acts that were alleged by the respondent. My findings in relation to what actually happened fully accord with the facts relied upon by the respondent. The claimant’s actions towards the respondent on 30 July 2019 were the way he spoke to the respondent and his behaviour as set out above.

[226]The claimant’s conduct as a matter of fact amounted to repud iatory conduct that went to the root of the employment relationship. He had fundamentally breached the contract of employment by his actions. He is not entitled to notice pay. That claim therefore fails. Failure to provide a written statement

[227]As the claims have not been successful, there can be no award for a failure to provide a written statement in terms of section 38 of the Employment Act 2002

Summary

[228]Each of the claims is therefore dismissed.