Mr S Haberfield and Mr K Bond v Bond’s Utilities Services Ltd: 6001004/2025 and 6001008/2025
EMPLOYMENT TRIBUNALS
Case No 6001004/2025, 6001008/2025
Between
Mr S Haberfield and Mr K BondClaimantMr B S Mondoh (Counsel)Respondent
Before
Employment Judge Mr J S BurnsMr T Street (instructed by Solicitor) for claimantMr B S Mondoh (instructed by Counsel) for respondentDate 2 October 2025
REASONS
[1]I heard evidence from the Respondent’s witnesses Mr K Brier (former operations manager) and Mr Darren Bond (owner) and then from the Claimants. The documents were in a bundle of 61 pages plus further bundles of pleadings and regarding mitigation.[2]The ET3s contained admissions that both Claimants were dismissed. The witness statements of both Respondent’s witnesses suggested that the Claimants had not been dismissed but had simply resigned. I allowed the Respondent to amend its ET3s to withdraw the admissions, because the circumstances of the termination of employment was already the main issue in the case.[3]The Claimants were much clearer and more convincing in their evidence than were the Respondent’s witnesses whose testimony was at times inconsistent with the contemporaneous documents. For example, Mr Brier in his witness statement denied that had dismissed the Claimants but readily abandoned that stance under cross-examination when confronted with his own text messages. Where there was a dispute of fact I prefer the Claimants’ version of events. Findings of fact 1 Name of Respondent changed only 2 See last paragraph of the Reasons
Findings of fact
[4]The Respondent is a small company which provides drainage and other services on the railways for a single client all over the south of the UK. The Claimant Mr Kevin Bond and Mr D Bond are brothers. Both Claimants were employed by the Respondent from 2010 to 2019 and then again from 2021 to September 2024.[5]The Claimants did not have any written employment contracts or written statement of terms of employment but were paid for working 45 hour weeks Monday to Friday, with extra pay if they worked at weekends.[6]Work is often done on the railways over weekends and the Respondent regularly required employees to work then.[7]In years past both Claimants had worked often at weekends but since 2019 neither had wanted to work many weekends. After they came back to work for the Respondent in 2021 Mr D Bond discussed the matter of weekend working with the Claimants (who were both over 55 years of age at the time) and assured them that they would not be expected to work weekends regularly as the younger employees could do that work. However in practice both Claimants were willing to help out from time to time by working a weekend occasionally. Mr Haberfield worked about 6 weekends per year on average and Mr K Bond one or two. In the months up to September 2025 there was a pattern of the Claimants being requested to work weekends but declining or refusing to do so.[8]The practice of the Claimants working weekends occasionally when they were willing to do so was too poorly defined and uncertain for me to find that it was an enforceable contractual obligation of the Claimants under the unwritten employment contract. It is unnecessary to imply a term that they were obliged to work overtime at the weekends because the occasional weekend work which they did is explicable by reference to those occasions when they volunteered or exceptionally agreed to do so as an extra over and above their set weekday hours.[9]Mr D Bond had delegated authority to deal with the staff to Mr Brier because Mr D Bond thought that he (ie himself) was too soft and that Mr Brier was tougher with them.[10]Mr Brier became increasingly annoyed by the reluctance and repeated refusals of the Claimants to work weekends when he sent out Whatsapp requests and directions about this to the workforce (ie to the 12 Respondent employees including the Claimants). Mr Brier seemed to believe or at least conducted his management of the Claimants as if he believed that the Claimants were contractually obliged to work weekends or at least what he regarded as a reasonable number of weekends. There was therefore a mismatch between Mr Brier’s understanding of the legal position and what I find it actually was.[11]In evidence Mr Brier complained about other alleged performance shortcomings on the part of the Claimants, for example that they had a bad attitude to work, were unreliable, complaining, left site early, were not interested in working hard etc. However, none of this was documented or made the subject of any disciplinary or formal performance management steps whatsoever and I do not find any of it proved. In his evidence Mr D Bond said he would have welcomed the Claimants back after their dismissal which tends to contradict that criticism.[12]On 11/9/24 Mr Brier sent a Whatsapp message to the workforce in which he singled out the Claimants and stated that he expected them to work Saturday night shifts on 21/9/24 and 28/9/24.[13]Mr K Bond replied soon afterwards using Mr Haberfield’s phone “Im not lin want me home with her”. Lin is Mr K Bond’s partner who unfortunately had been suffering from serious illhealth and also at the time had to deal with clearing out the home of her recently deceased brother. To ensure that Mr Brier realized that it was Mr K Bond who sent the message Mr Haberfield using the same phone sent a further message which reads “Kev Bond text that”.[14]Mr Brier replied to this “Kevin Bond Im fed up with your excuses, I need you and Steve H to work 21/9 and 28/9 as we are very short on labor and you are required to work some weekends” Mr K Bond replied “It not an excuse am not doing it”[15]Mr Haberfield did not reply immediately to Mr Brier’s demand that he work the particular weekends as he was waiting to find out whether his son (who unfortunately has also been suffering serious ill-health) was to be admitted to hospital for surgery on either of those weekends. About 24 hours later Mr Brier sent him a message stating “Steve H are you refusing to work weekends if so I will view the refusal to work procedure and you can have your weeks notice we have discussed previously you were happy to do the odd weekend so what has changed?” This was a threat of dismissal and an ultimatum.[16]Mr Haberfield replied “Before you start shouting your mouth off I never refuse to work my son might be going to hospital for other operation that week and look at the text properly.”[17]Mr Brier then replied to that on 12/9/24 “Steve there is no need to be rude. I suggest that you make it your last day tomorrow Friday 13/9/24 then you can spend quality time with your some (sic) before he goes into hospital this is all I have to say on the matter.”[18]On 12/9/24 Mr Haberfield appealed informally to Mr D Bond, and told him what had happened. Mr D Bond responded that he refused to interfere with Mr Brier’s decisions and that it was up to Mr Haberfield to sort matters out with Mr Brier.[19]Mr Haberfield tried to contact Mr Brier asking if he had been sacked. Mr Brier replied on 13/9/24 stating “yes Friday would be your last day you could have worked your weeks notice but because you have been rude to me and again you go over my head to Darren to discuss your private issues…I have made my decision and that’s final.”[20]Mr Brier then texted K Bond asking him if he would work one of the weekends to which he replied “no sorry”. On 13/9/24 Mr Brier then sent him a message: “goodmorning Kevin I am very disappointed that you wont work as you have stated previously you don’t mind every now and again to help out if needed so ..on that note I and (sic) giving your (sic) one weeks notice starting today 13/9/24 and ending Friday 20/9/24, as we need a good team to carry out ongoing works and that are reliable for weekends when needed thank you.”[21]After receiving this message Mr K Bond on 13/9/24 drove in a Respondent’s vehicle which he had possession of to Mr D Bond’s home and returned the keys to him and was then collected by Mr Haberfield who went into the property and spoke to Mr D Bond and told him he could not believe what was going on, that he was very disappointed and would be seeking legal advice. Mr D Bond said he would sort it out over the weekend and ring Mr Haberfield on Monday but he did not. Mr D Bond has never spoken to his brother Mr K Bond either since that day. The following week the Claimants received their P45s.[22]On 2/10/24 Mr Haberfield again contacted Mr D Bond to try to resolve the issue. Mr D Bond again referred him back to Mr Brier. Eventually Mr Haberfield managed to speak to Mr Brier on the phone and asked him if he would take the Claimants back and in response Mr Brier said no and put the phone down on him.[23]The Claimants presented their ET1s claiming unfair dismissal and notice pay on 10/1/25 A summary of relevant law[24]Where the conduct of the employee is established by the employer as a potentially fair reason for dismissal under section Section 98(1) and (2) of the Employment Rights Act 1996, then section 98(4) must be considered which provides as follows: 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 upon 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.’[25]A dismissal for misconduct will not be unfair if it is based on a genuine belief on the part of the employer that the employee had perpetrated the misconduct, which belief is based on reasonable grounds following a reasonable investigation BHS v Burchell [1978] IRLR 379.[26]An Employment Tribunal should not substitute itself for an employer or act as if it were conducting a rehearing of or an appeal against the merits of an employer’s decision to dismiss. The employer not the Tribunal is the proper person to conduct the investigation into the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the result of that investigation, is a reasonable response. HSBC v Madden [2000] ICR 1283.[27]The ACAS Code of Practice No.1, Disciplinary & Grievance Procedures (2015) provides that that an employer wishing to discipline an employee should carry out an investigation to formally establish the facts; inform the employee in writing of the problem; after a proper interval, hold a meeting to discuss the problem; decide fairly on the appropriate action, and provide an opportunity to appeal. If these steps are not taken then, even if the employee has been guilty of misconduct, it is likely that the dismissal will be unfair and, under Section 207A of the Trade Union and Labour Relations Consolidation Act 1992, an Employment Tribunal, in awarding compensation for unfair dismissal can, if it considers it just and equitable in all the circumstances to do so, increase the award it makes to the employee by no more than 25%.[28]Sections 1 and 4 of the Employment Rights Act 1996 requires an employer to provide a written statement of employment particulars to the employee and to keep this up to date from time to time, and section 38 of the Employment Act 2002 provides that if an employer fails to do so then, where the employee makes out a case of unfair dismissal, the Tribunal may make an additional award of up to a maximum amount of 4 weeks’ pay.
Conclusions
[29]Mr Mondoh in final submissions pressed the Respondent’s amended case that the Claimants were not dismissed but resigned. He submitted that this was shown by Mr K Bond returning the company vehicle on 13/9/25. However, while returning the vehicle was consistent with the termination of employment it was no more consistent with resignation that it was with dismissal and in context it is clear that it was simply a response to Mr Brier having dismissed Mr K Bond by means of the text sent earlier that day. It was further suggested that the doubt expressed by Mr Haberfield asking Mr K Bond and finally Mr Brier whether he had been sacked and whether the Claimants could return was inconsistent with their having been dismissed. Those doubts were an expression of surprise and shock at the way they were being treated. In any event any such uncertainty was removed by Mr Brier’s communications of 13/9 and 2/10 which made it very clear what the position was.[30]Both the Claimants were expressly dismissed, Mr Haberfield summarily on 13/9/24 without notice and Mr K Bond with one weeks’ notice given on 13/9/24. However neither worked or were paid by the Respondent from 13/9/24 onwards.[31]The reason for the dismissals was Mr Brier’s belief that the Claimants were guilty of misconduct and refusal to obey a legitimate management instruction.[32]That belief was not based on reasonable grounds. In fact, the Claimants were not guilty of misconduct because they had no legal obligation to work weekends and Mr Brier’s instruction that they should, exceeded the Respondent’s rights over the Claimants.[33]In any event Mr Haberfield had not refused to work the weekends in question – but merely explained that he was waiting to see if he could or not, having regard to his son’s pending hospitalisation. In the case of Mr K Bond he had refused to work those particular weekends but had not said that he refused to work all weekends.[34]The dismissals were carried out without any semblance of a fair procedure and were in breach of every aspect of the ACAS code. Mr Brier’s attitude and conduct towards the Claimants was rude, aggressive and cavalier. It is true that Mr Haberfield responded rudely on 11/9 but Mr Brier had started it by singling the Claimants out in front of the workforce and by making an unwarranted threat of dismissal to back up his demands. Unfortunately Mr D Bond failed to intervene to salvage the situation although he was given the chance of doing so when Mr Haberfield informally appealed to him.[35]Dismissal was outside the range of reasonable responses.[36]The Claimants were unfairly dismissed procedurally and substantively.[37]I recognise that the Respondent had an operational need for employees to work over weekends and that the Claimants’ reluctance and pattern of refusals leading up to September had caused frustration and probably operational problems. However, as the Respondent had not put in place any written contract setting out any obligation on their part to work a particular number of weekends the Respondent was not in a position to deal with this problem effectively. The fact that an employee refusing to work overtime causes frustration and operational problems does not equate to misconduct by the employee if the employee is under no legal obligation to work the overtime.[38]The sensible course of action to resolve this operational problem would have been for Mr D Bond and Mr Brier to have discussed the matter with the Claimants calmly and face-toface with a view to negotiating a formal written employment contract about this, which either made it clear that the Claimants were not required to work weekends or which required them to work a minimum number of weekends if needed in a specified period.[39]If the Claimants had then refused to commit formally to working a sufficient number of weekends and it was not practicable for the Respondent to continue with the Claimants employment at all on that basis (both of which matters are not shown as likely to have been the case if this hypothetical discussion had ever taken place) then the question of whether their employment could continue or would have to be ended, should have been dealt with in a formal, structured and fair manner.[40]As the dismissals were substantively and procedurally unfair and there was no reasonable process whatsoever it is not appropriate to make any Polkey deduction. In any event if the Respondent had acted fairly I find it highly likely that both Claimants would still be employed by the Respondent.[41]There is also no proper basis for finding any contributory fault.
Remedy
[42]Both Claimants claimed compensation only. They both had the same length of continuous service and earned the same amounts from the Respondent prior to their dismissals. They are both earning the same amount now from their new employer namely the Bristol City Council.[43]Mr Haberfield made many applications but managed to get new work only on 14/4/2025. His pay from then was £141.12 net per week less than he had been earning from the Respondent but he is working shorter hours and not having to travel outside Bristol as he was doing before. He has not looked for further or better paid work since then or for a second job to make up his reduced hours and travelling time. I find no failure to mitigate up to 14/4/25 but find that since then he has failed to mitigate in respect of his shortfall in his previous salary.[44]Mr K Bond did not look for alternative work and instead spent time helping his partner until April 2025 when he then applied for a job also with Bristol City Council which had been spotted by Mr Haberfield. He started the new job on 2/6/25. I do not find that he was incapacitated from working after he was dismissed either by his sore knee with which he had been able to work for the Respondent, or by any psychological issues, for which there is no proper evidence. I find that he failed to take reasonable steps to mitigate in the period to April 25 but that even if he had taken reasonable steps he would not have fared better than Mr Haberfield did in terms of getting a new job. The two Claimants both have very similar skills, ages and experience and despite the fact that Mr Haberfield made many applications, he was unable to get a new job before 14/4/25. I find that had the Claimant made a reasonable effort to get another job he would have been able to do so by the same date as Mr Haberfield namely by 14/4/25. Since 2/6/25 his pay is also less than it was from the Respondent but again he is working fewer hours and not having to travel outside Bristol. He says he enjoys his new job and is not looking for another better paid one.[45]I regard it as just and equitable to award compensation to each of the Claimants for loss of earnings up to 14/4/2025 but not beyond that date.[46]Their awards are therefore as follows (adapting the figures set out in the schedules of loss which were unchallenged) Basic award £3150 Loss of statutory rights £350 Loss of earnings 12/9/24 – 14/4/25 £17437.46 Pension loss 2.5% of gross pay for 30.5 weeks £533.75 Subtotal (£21471.21) Uplift for breach of ACAS code 25% £5367.80 Total award for UD £26839.01 4 weeks gross pay for Respondent’s failure to comply with Section 1 and 4 of the Employment Rights Act 1996. (4 weeks awarded as there was a complete failure to comply and the absence of a written contract setting out the extent of the mutual rights and obligations has contributed significantly to the unfair dismissal and the dispute) £2800 Total payable to each of the Claimants £29639.01 The Recoupment Regulations apply to Mr S Haberfield’s award. The prescribed amount is £17437.46 and the prescribed period is 13/9/24 to 14/4/25. The difference between the total award and the prescribed amount is £12201.55. His NHS number is NH981435D J S Burns