Mr K James v Hunslet Ltd and Mr P Murray: 6007401/2024
EMPLOYMENT TRIBUNALS
Case No 6007401/2024
Between
Mr K JamesClaimantHunslet Ltd and Mr P MurrayRespondent
Before
Employment Judge BoothMr M Puar (instructed by Counsel) for claimantMr S Liberadzki (instructed by Counsel) for respondentDate 23 January 2025
JUDGMENT
[1]The first respondent’s name is amended to Hunslet Ltd by agreement between the parties.[2]The claimant’s complaint against the second respondent is withdrawn and dismissed on withdrawal.[3]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed due to the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[4]There is a 100% chance that the claimant would have been fairly dismissed in any event.[5]It is just and equitable to reduce the basic award payable to the claimant by 100% because of the claimant’s conduct before the dismissal.[6]The claimant caused or contributed to the dismissal by blameworthy conduct and it is just and equitable to reduce the compensatory award payable to the claimant by 100%.[7]In light of the findings made at paragraphs 4 to 6 above, it is not necessary to reach judgment in connection with any adjustments to the award of compensation in connection with either(i) the respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015, or(ii) the principles established in Polkey v A E Dayton Services Limited [1988] ICR 142.[8]The complaint of breach of contract in relation to notice pay is not well-founded and is dismissed.
REASONS
[1]At the commencement of the hearing, the first respondent’s name was amended to Hunslet Ltd by agreement between the parties and the claimant’s complaint against the second respondent was withdrawn.[2]The claimant, Mr James, brings a complaint that the respondent, Hunslet Ltd, unfairly dismissed him. The respondent disputes the claim.[3]Within the course of proceedings, Mr Puar for the claimant sought to add a complaint claim of wrongful dismissal. Mr Liberadzki for the respondent objected to this. The claimant’s ET1 claim form cannot be reasonably understood to include a complaint of wrongful dismissal: the claimant has not ticked to state that his claim includes notice pay and nor does his description of his claim include reference to notice pay. Similarly, the claimant does not make mention of notice pay in his witness statement. When the list of issues was agreed at the commencement of the hearing, Mr Puar did not seek to include a claim for wrongful dismissal. However, the Tribunal notes a reference to notice pay within the skeleton argument submitted shortly before the commencement of the hearing. The Tribunal considered the matter as an application to amend the claim. Although the claimant was significantly out of time to introduce a new complaint of wrongful dismissal, the Tribunal considered that the new complaint arose out of substantially the same facts as his complaint of unfair dismissal and that the claimant would be put at a hardship if not permitted to pursue the new complaint. The Tribunal considered that, although the new complaint was introduced very late in proceedings, the respondent had presented documentary and witness evidence as to the question of whether the claimant had committed an act of gross misconduct and Mr Murray was able to answer questions in connection with the complaint of wrongful dismissal. The Tribunal concludes that the hardship to the respondent in having to answer an additional complaint within proceedings was, on balance, lesser than the hardship that would be caused to the claimant in not permitting that additional complaint. The Tribunal therefore allowed the amendment and added the wrongful dismissal complaint to proceedings.[4]The Tribunal reviewed documentary evidence contained within the ET1 claim form, ET3 response form, and an agreed bundle of documents consisting of 98 pages. The claimant gave witness evidence on his own behalf. Mr Murray, Managing Director, gave witness evidence on behalf of the respondent. Written witness statements were read in advance and the witnesses gave further evidence through cross examination and Tribunal questions.[5]The bundle of documents included information obtained from a company vehicle tracker, which the claimant contends was obtained without his knowledge or consent. Mr Puar, for the claimant, accepted that such documentary evidence is admissible in these proceedings but contends that the question of how the information was obtained is relevant to the fairness of the decision to dismiss the claimant. The Tribunal therefore admitted the vehicle tracker information into evidence.
Issues to be Determined
[6]At the beginning of the hearing, the parties agreed that the following issues were to be determined by the Tribunal:a. What was the reason or principal reason for the claimant’s dismissal? The respondent relies on the claimant’s conduct.b. Was the reason for dismissal a potentially fair reason under section 98(1) and 98(2) ERA?c. Was the respondent’s belief in the reason (i.e. the claimant’s alleged misconduct) genuinely held?d. Were there reasonable grounds for the respondent’s belief?e. At the time the respondent’s belief was formed, had the respondent carried out a reasonable investigation?f. Did the respondent act reasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason (i.e. the claimant’s alleged misconduct) as a sufficient reason to dismiss the claimant?g. Was dismissal within the band of reasonable responses of a reasonable employer?h. Did the respondent otherwise act in a procedurally fair manner?[7]If was further agreed that, If the Tribunal decided that there has been unfair dismissal, then it will consider additional issues relevant to remedy as follows:a. Whether the claimant contributed to the decision to dismiss them and, if so, to what extent.b. Whether the unfair dismissal would have been a fair dismissal if only a more reasonable procedure had been followed and if so what was the chance that the claimant would have been fairly dismissed in any event. Whether to apply a reduction in accordance with Polkey v AE Dayton Services Ltd.c. Whether either party failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and, if so, whether it is just and equitable to increase or reduce the award of compensation to reflect this failure.d. 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? 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. Would it be just and equitable to award four weeks’ pay?[8]In relation to the complaint of wrongful dismissal, the following issues were to be determined by the Tribunal:a. Did the claimant fundamentally breach the contract of employment by committing an act of gross misconduct?b. If so, did that have the effect of releasing the respondent from the obligation to give the claimant four weeks’ notice or pay in lieu of notice?[9]This matter was listed for one day hearing and so the Tribunal concentrated on the issues outlined above, with remedy to be determined separately. Findings of Fact Dates of Employment
Findings of Fact
[10]The claimant commenced employment with Ed Murray & Sons (Corus Projects) Limited on 16.03.2020. Shortly after the start of his employment, the claimant received a letter dated 30.03.2020, which set out details of employment including the identity of the employer and employee, start date, rate of pay, working hours, place of work, entitlement to holiday sick pay and pension, and notice period.[11]In April 2023, the claimant’s employment was transferred with his agreement from Ed Murray & Sons (Corus Projects) Limited to the respondent. The respondent accepts that the claimant’s continuous employment transferred with him (Mr Murray’s witness statement, paragraph 7).[12]In July 2023, the claimant gave the respondent notice to terminate his employment. The respondent initially asserted in their Grounds of Resistance that the claimant’s employment ended on Friday 14.07.2023 and the claimant confirmed this date in his witness statement. The bundle of documents (page 53) includes a P45 which gives the claimant’s leaving date as 14.07.2024. It is agreed between the parties that, within a few days, the claimant returned to the respondent who agreed to re-employ him. The respondent initially asserted that the claimant returned on Tuesday 18.07.2023 and the claimant confirmed this date in his witness statement.[13]In his witness statement (paragraphs 8 and 9), Mr Murray sought to amend the date the claimant’s employment ended to Friday 07.07.2023 and the date the claimant returned to Wednesday 12.07.2023. This amendment is not supported by the documents. The Tribunal finds that the initial set of dates (those set out in the paragraph above) are the correct dates. However, nothing turns on this. The respondent confirmed that it is accepted that, whichever set of dates is adopted, there was no gap in employment of one complete calendar week ending with a Saturday and so there is no break in continuous service.[14]It is agreed between the parties that the claimant’s period of continuous employment commenced on 16.03.2020 and continued without break to 21.06.2024. Personal Use of Company Vehicle[15]The claimant was provided with a company vehicle to carry out his duties. At all relevant times, the vehicle was a van with registration WT19 WBP. It is agreed between the parties that only the claimant could or would have been driving this vehicle on the dates of the vehicle tracker information contained in the bundle of documents (pages 57 to 65) being 17.05.2024 to 24.05.2024 inclusive.[16]The claimant was permitted to use the company vehicle to commute to and from work. There is a dispute between the parties as to whether the claimant was permitted to use the company vehicle for personal use.[17]Mr Murray confirmed that, although the respondent has a policy on vehicle use, he cannot be confident that the claimant was made aware of that and the respondent therefore does not rely on the fact or terms of this policy in these proceedings. The policy was not put before the Tribunal.[18]Mr Murray described a telephone conversation lasting approximately 15minutes and taking place approximately two years ago in which he explained that if the claimant wished to make use of the company vehicle, he would need to pay tax on this as a benefit in kind. The claimant stated that he cannot recall this conversation taking place.[19]The parties agree that the claimant asked Mr Murray for permission to use the vehicle on one occasion for a family emergency. Mr Murray described that he granted permission, but made clear that continued personal use would have tax implications (as above). The claimant described that he had only asked Mr Murray for permission on this occasion due to the length of the journey (from the claimant’s home in Llanelli to a location in Bristol). The claimant could not recall Mr Murray mentioning the tax implications of continued personal use.[20]The claimant’s payslips do not include a deduction for this taxable benefit and nor does the claimant claim to have paid such tax. The respondent suggests that the claimant would have known that colleagues who were making personal use of their company vehicles were paying tax for this benefit. The Tribunal accepts that the respondent made a distinction between the tax treatment of those employees who had opted in to personal use of the company vehicles and those who had not. However, the Tribunal considers that it cannot reasonably be assumed that the claimant would have knowledge of his colleagues’ tax liabilities.[21]The Tribunal finds as fact that Mr Murray did inform the claimant that, if he wished to make personal use of the company vehicle, this would become taxable benefit as a benefit in kind. The Tribunal finds as fact that the claimant opted not to make personal use of the company vehicle.[22]The claimant described that he believed he could make personal use the company vehicle if he needed to and asserted that Mr Murray was aware that he used his company vehicle for charity work (for Llanelli & Mynydd Mawr Railway heritage charity). The claimant described that he needed to use the company vehicle instead of his own car because he performed maintenance on locomotives and needed to use his company vehicle to transport his tools. Mr Murray states that although he was aware of the claimant’s charity work, he was not aware of the nature of what the claimant did or that he needed to use the company vehicle to transport tools. The Tribunal finds that it cannot reasonably be assumed that Mr Murray was aware that the claimant would need to use his company vehicle to carry out work for the charity.[23]The claimant confirmed that he had not informed Mr Murray that he was making personal use of the company vehicle for his charity work as he did not believe he needed to. The claimant described that he used the company vehicle to drive short distances (approximately 6 to 7.5 miles each way) once per month for his charity work. The claimant sought to draw a distinction between this usage and the personal emergency for which he sought permission to use the company vehicle based on distance. It is approximately 90 miles each way from the claimant’s home in Llanelli to central Bristol. The claimant was required to regularly drive the company vehicle to and from his home in Llanelli to his workplace in Derby, which is a distance of approximately 200 miles each way. The Tribunal finds that, if the claimant believed that he was authorised to make personal use of the company vehicle, it would be reasonable to assume that this authorisation extended to a journey of approximately 90 miles each way. The Tribunal finds as fact that the claimant sought permission to use his company vehicle for this journey because he understood that he was not authorised to make personal use of the company vehicle.[24]The claimant described that he had access to a company fuel card and was not required to pay for personal mileage. The claimant described that he put his mileage down on his timesheets, to say where he had been and what he had done. The vehicle tracker information for Saturday 25.05.2024 (page 65 of the bundle) showed that the claimant drove to Llannon (a distance of 7.5 miles each way). In evidence, the claimant confirmed that this would have been for his charity work. The claimant’s timesheet for week ending 25.05.2024 (page 67 of the bundle) did not include any mileage for 25.05.2024. The claimant described that the mileage information was included in the vehicle maintenance log, which was not in evidence before the Tribunal. The Tribunal believes it is likely that such maintenance log would include a mileage figure for the purposes of tracking when servicing or maintenance may be required, without requiring journey specific information. The Tribunal finds as fact that, with the exception of the one journey to Bristol for a family emergency described above, the claimant did not disclose to the respondent that he was making personal use of the company vehicle.[25]The Tribunal finds as fact that the claimant was not authorised to make personal use of the company vehicle and that the claimant was aware of this restriction on his usage.[26]After being made aware that he was facing an allegation of “unauthorised and untaxed personal use of a company vehicle at weekends”, on 05.06.2024 the claimant emailed the respondent (J Cannell) and stated that “I was not informed that use of the vehicle in my own time was prohibited” (page 74 of bundle). The Tribunal notes that Mr Murray’s reply to this email confirmed that the claimant’s points would be discussed in the disciplinary hearing. The Tribunal is not persuaded that this exchange evidences that the claimant was unaware of the restriction on personal use. Vehicle Trackers[27]Mr Murray described that company vehicles were fitted with 2G vehicle trackers, which failed during COVID due to outdated technology. In May 2024 he took the step of replacing them on the advice of his insurance company. (Paragraph 15 of Mr Murray’s witness statement).[28]Mr Murray described that he has a data protection policy as part of a compliance file, but did not consult this policy before installing or replacing the vehicle trackers in company vehicles.[29]Mr Murray confirmed that he did not inform the claimant that his company vehicle had a tracker because he considered that he was tracking the company asset not the driver. Mr Murray described that he installed the tracker to control and protect the vehicle as a company asset, with security being the principal reason for installing it. Mr Murray described that there were other reasons, for example, if a driver was running late it would be advantageous to be able to tell them how far the driver was from the job.[30]The respondent’s company vehicle tracker logged that that claimant had driven at the following speeds (pages 66 to 71 of the bundle):a. 82mph, 93mph and 105mph on 17.05.2024.b. 87mph on 19.05.2024.c. 103mph on 20.05.2024.d. 81mph on 21.05.2024.e. 91mph on 23.05.2024.f. 98mph on 24.05.2024.[31]The claimant does not challenge the accuracy of the vehicle tracker information.[32]Mr Puar for the claimant alleged that the vehicle tracker information was obtained through illegal means (in breach of the Data Protection Act 2018 and Article 8 of the European Convention on Human Rights). The Tribunal does not have jurisdiction to determine a claim for breach of either the Data Protection Act 2018 or the European Convention on Human Rights and makes no finding as to whether the vehicle tracker information was obtained illegally. Disciplinary Procedure[33]Mr Murray confirmed that the respondent relies on the ACAS code of conduct for disciplinary and grievance procedures when conducting a disciplinary procedure.[34]On 30.05.2024, the claimant was approached by Mr Murray and asked to come into the office. Mr Murray described that this meeting was intended to be a factfinding meeting and that he intended to ask the claimant to return his keys and put him on suspension, pending a disciplinary hearing. No notes were taken of the meeting. However, the claimant and Mr Murray gave broadly consistent evidence in relation to the discussion that took place. The Tribunal accepts that this meeting was a fact-finding meeting and not a disciplinary hearing.[35]It is agreed between the parties that, in the meeting of 30.05.2024, Mr Murray asked the claimant whether or why he had been speeding in a company vehicle, to which the claimant responded that he was speeding because “I like speed”. It is agreed between the parties that Mr Murray asked the claimant whether he had driven at 105mph and the claimant responded that he was doing it to save the respondent money, as he was spending less time on the road. The claimant asserts that these comments were made in a joking manner, however Mr Murray regarded the claimant’s response as flippant. The Tribunal finds that the comments were made and that it would not be reasonable to interpret them as humorous. Further, the Tribunal finds as fact that, taken with the vehicle tracker information, this fact finding meeting was sufficient to establish that the claimant had been driving in excess of lawful speed limits including speeds of up to 105mph.[36]In evidence before the Tribunal, the claimant described that he did not believe he had driven dangerously. He described his speed as “excessive, but not dangerous”. He described that, at the relevant times, the roads were empty and suggested that it must have been early in the morning. The claimant’s position is therefore that he assessed the risk and determined that he could drive at high speeds without risk to himself or others. Further into his evidence, the claimant described that he had not realised how fast he was driving. Given the claimant’s position that he had assessed the risk and given the speeds at which the claimant was driving, the Tribunal does not accept that the claimant could have been unaware that he was driving far in excess of lawful speed limits. However, the Tribunal has considered that the alternative position, that the claimant had repeatedly driven at speeds significantly in excess of lawful speed limits due to a lack of due care and attention, and the Tribunal finds that this does not alter the seriousness with which the respondent was entitled to view the claimant’s conduct.[37]In the same meeting, on 30.05.2024, the claimant was informed that he was suspended on full pay and asked to return the keys to the company vehicle. The parties agree that the claimant initially resisted returning the keys. The claimant states this was because he was conscious that his tools were still in the van. The claimant described that Mr Murray told him that he had cancelled the insurance for the claimant and if he drove the company vehicle, Mr Murray would call the police. The claimant described this exchange as “humiliating”. Mr Murray described that when the claimant resisted returning the keys, he informed the claimant that if he took the company vehicle it would be without the owners’ consent and he would call the police. Either way, the claimant did return the keys and the respondent arranged transport to take him home. The Tribunal concludes that Mr Murray did threaten to inform the police if the claimant drove the company vehicle. The Tribunal finds that this statement was made after the claimant has resisted a request to return the company vehicle keys and in circumstances where Mr Murray had a reason to believe the claimant had been driving in excess of lawful speed limits. The Tribunal finds that this statement was made in front of only one other employee and was a reasonable statement to make.[38]On 03.06.2024, the respondent wrote to the claimant to confirm that he was suspended and invite him to a disciplinary hearing on 07.06.2024. This letter was sent by email of 04.06.2024. In the letter, the respondent advised the claimant of his right to be accompanied at the disciplinary hearing by a colleague or trade union representative and informed the claimant that the allegations to be discussed were as follows:a. Misuse of company equipment;b. Regular speeding;c. Unauthorised and untaxed personal use of a company vehicle at weekends.[39]The respondent’s letter stated that one possible outcome was that the claimant might be dismissed with or without notice pay.[40]In evidence, the claimant confirmed that, at the time of receiving this letter, having had the discussion with Mr Murray on 30.05.2024, he understood what these allegations were referring to. The Tribunal finds that the claimant was therefore aware of the general nature of the allegations against him and the potential consequences should the allegations be upheld. However, the Tribunal finds that the claimant did not have sufficient information about the specific details of the allegations such as the dates and times at which he was alleged to have been speeding or made personal use of the company vehicle.[41]On 05.06.2024, the claimant emailed the respondent and stated that he would not be able to attend the disciplinary hearing on 07.06.2024 because it would not give him sufficient time to arrange to be accompanied. The claimant asked for a copy of his signed contract of employment and evidence of his alleged offences. The claimant also stated that “I was not informed that use of the vehicle in my own time was prohibited.”[42]By return email on 06.06.2024, Mr Murray agreed to postpone the disciplinary hearing and invited the claimant to propose an alternative date and time in week commencing Monday 10.06.2024. Mr Murray confirmed that he would be happy to discuss the claimant’s points within the disciplinary hearing.[43]On 06.06.2024, the claimant emailed Mr Murray and stated that he needed the information requested in his earlier email so that his representative would have what they needed to go forward with the disciplinary hearing. The claimant did not propose an alternative date or time for the hearing.[44]On 10.06.2024, Mr Murray sent the vehicle tracker records to the claimant by email. The claimant accepts that he received the vehicle tracker information detailing the speeds that he had driven at (with dates and journey information) and details of journeys undertaken outside his working hours (including at weekends). The Tribunal notes that further data was available from the vehicle tracker but finds that the information supplied to the claimant provided sufficient information about the specific details of the allegations such as the dates and times at which the claimant was alleged to have been speeding or made personal use of the company vehicle. The Tribunal finds that, by 10.06.2024, the claimant had sufficient information about the allegation that he had been speeding to answer this allegation within a disciplinary hearing.[45]In his email of 10.06.2024, Mr Murray does not repeat his request for an alternative date or time for the hearing. Nor does Mr Murray explain why the claimant’s contract of employment was not attached. The claimant did not respond to the respondent’s email of 10.06.2024. The claimant stated that he did not give the respondent a date for the disciplinary hearing in week commencing 10.06.2024 because he was still waiting for a copy of his contract of employment.[46]On 18.06.2024, the claimant emailed the respondent again to ask for a copy of his contract of employment. The respondent contends that this delay was a deliberate attempt to play for time and that the claimant did not intend to attend the disciplinary hearing. The Tribunal has made a finding of fact that the claimant was aware that he was not permitted to make personal use of his company vehicle. However, the Tribunal finds that the claimant’s repeated request for a copy of his contract of employment was reasonable because it may have contained information relevant to the allegation of unauthorised and untaxed personal use of a company vehicle at weekends.[47]The Tribunal notes that, aside from the vehicle tracker information supplied on 10.06.2024, there was no other documentary evidence available, either within the claimant’s contract of employment or separately, as to the respondent’s rules about personal use of a company vehicle.[48]Mr Murray did not respond to the claimant’s email of 18.06.2024. Mr Murray stated that he had already made his decision by this time and considered that if he tried again to arrange a hearing the claimant would have another reason why he could not attend. Mr Murray therefore sent confirmation of dismissal dated 21.06.2024. The Tribunal finds as fact that the respondent did not warn the claimant that a decision would be made in his absence and the claimant could not have reasonably understood this would happen. The Tribunal finds that, on receiving the claimant’s email of 18.06.2024, it would have been reasonable for the respondent to offer a further date for a hearing before confirming a decision and that this would not have substantially delayed matters.[49]The letter of 21.06.2024 did not inform the claimant of his right of appeal or how to exercise this right. In his witness statement (paragraph 19) and in evidence before the Tribunal, the claimant confirmed that if the letter had set out his right of appeal, he would not have taken this up because he did not want to return to his employment with the respondent.[50]On 26.06.2024, the claimant wrote to the respondent setting out why he believed that the decision to dismiss him was unlawful. The claimant confirmed within his letter of 26.06.2024 that he did not want his job back. Mr Murray did not respond to this letter. The Tribunal finds that, given that there had been no disciplinary hearing, it would have been reasonable for Mr Murray to consider the points put forward by the claimant in his letter of 26.06.2024 as the claimant’s response to the allegations against him and to provide a response to the same. However, the Tribunal accepts Mr Murray’s assertion that had he considered the claimant’s letter to be an appeal it would not have changed the decision to dismiss as set out below. Decision to Dismiss[51]In his witness statement (paragraphs 33 and 34) Mr Murray described that he concluded as follows:a. That the claimant knew of the legal speed limits and the company’s requirement for him to drive within that speed limit and to take reasonable care of his wellbeing and the wellbeing of others. The claimant had driven at excess speed, breaking the legal speed limit repeatedly. The respondent concluded that the level of speed was such that the claimant must have known that he was driving dangerously and putting himself and others at risk. The respondent concluded that the claimant’s actions amounted to a breach of health and safety.b. That the claimant was aware that he was only authorised to use the company vehicle for work purposes because(i) the respondent offered employees the option to use company vehicles privately as long as they agreed to pay company vehicle tax and the claimant had not opted into this, and(ii) the claimant had asked permission to use the vehicle on one weekend for a family emergency and the tax position was explained to him again at the time. The respondent concluded that the vehicle tracker information confirmed that the claimant had been using the company vehicle at weekends.[52]In evidence before the Tribunal, Mr Murray confirmed that he did not think there was an alternative to the decision to dismiss because of the seriousness of the speeds recorded in the vehicle tracking information. Mr Murray described that, after considering the evidence (including the speeds driven at and his online enquiries that indicated that the authorities would view the speed as dangerous driving) and his concerns about the danger posed to the public and to the company vehicle, he was struggling to see how he could make any other decision than to dismiss. Mr Murray described that he concluded the claimant’s actions were wilful as he had driven at excessive speeds several times within a week and when asked about it on 30.05.2024 had responded “I like speed”. Mr Murray described that the principal issue that he could not get past was that the claimant drove the company vehicle at 105mph on a public road and that was the absolute reason for dismissal that he could not come back from. The Tribunal finds as fact that the principal reason for dismissal was conduct, being the claimant driving at speeds of up to 105mph in the company vehicle.[53]On 21.06.2024, the respondent wrote to the claimant to inform him that “due to concerns around your performance and conduct” he was dismissed with immediate effect. The claimant was paid in lieu of one week’s notice and accrued holiday. The dismissal letter did not include a right of appeal.[54]Mr Murray stated that he did not include information about his reasons for dismissing the claimant or a statement to confirm that he had concluded that the claimant’s conduct amounted to gross misconduct because the claimant had short service. The Tribunal finds that Mr Murray acted because he believed that the claimant had insufficient service to bring a claim for unfair dismissal. However, the Tribunal is persuaded that, although Mr Murray did not set out his reasons for dismissal more fully they are as set out in paragraph 52 above.[55]In evidence, the claimant asserted that, if he had attended a disciplinary hearing he would have apologised for his actions. The claimant went on to describe that he had said sorry in the meeting on 30.05.2024, however this is not supported by information in the ET1 claim form, the claimant’s witness statement, the claimant’s email correspondence of 06.06.2024 and 18.06.2024 or his letter of 26.06.2024. Nor is it supported by Mr Murray’s recollection of the meeting. The Tribunal finds as fact that the claimant did not apologise or show remorse for his actions either in the meeting of 30.05.2024, or afterwards. The Tribunal finds that, had the claimant attended a disciplinary hearing, it is unlikely that he would have shown remorse for his actions or that (if he had) this would have altered Mr Murray’s decision to dismiss him.[56]In evidence, the claimant asserted that, if Mr Murray had asked him to drive more slowly, he would have complied with this. The claimant confirmed that he is aware of the lawful speed limits and that, prior to the incidents of speeding for which he was dismissed, had attended a speed awareness course. The Tribunal has made a finding of fact that the claimant was aware of the lawful speed limits and decided to drive in excess of them. The Tribunal concludes that, given the claimant was not willing to comply with legal requirements to drive more slowly, it is reasonable to conclude that he may not have been willing to comply with a request from his employer. Relevant Law Article 8 of the European Convention on Human Rights
Relevant Law
[57]The claimant complains that the respondent’s actions in obtaining vehicle tracker data without the claimant’s knowledge or consent is in breach of the Data Protection Act 2018 (DPA) and Article 8 of the European Convention on Human Rights (ECHR). It is submitted on behalf of the claimant that, the question of whether there has been a breach of the DPA and/or ECHR is relevant to the reasonableness of the respondent’s decision to dismiss the claimant (and in particular, to the investigation conducted by the respondent).[58]The Tribunal does not have jurisdiction to determine a complaint of an infringement of rights under the DPA.[59]Section 3(1) of the Human Rights Act 1998, which requires the Tribunal to read and give effect to primary legislation in a way that is compatible with the ECHR. It was confirmed in X v Y 2004 ICR 1634, CA that the Tribunal therefore has an obligation, when considering the application of section 98 ERA, to consider the following:a. Is the ECHR engaged – i.e. do the circumstances of the dismissal fall within the ambit of one or more of the articles of the ECHR?b. If the ECHR is engaged – is does the state have a positive obligation to secure the enjoyment of the relevant ECHR right between private persons?c. If it does, is the interference with the ECHR right by dismissing the employee justified?[60]Article 8(1) of the ECHR states: “Everyone has the right to respect for his private and family life, his home and his correspondence.”[61]Whether Article 8(1) is engaged in this case requires a consideration of whether the claimant had a reasonable expectation of privacy at the time that the tracker in the company vehicle he was driving was in use.[62]In the case of City and County of Swansea v Gayle 2013 IRLR 768 EAT Langstaff J stated: “It is a feature of an employment contract that an employee is subject to the reasonable direction of his employer. An employer is thus entitled to know where someone is and what they are doing in the employer’s time. An employee can have no reasonable expectation that he can keep those matters private and secret from his employer at such a time. To do so would be to run contrary to the contract he had entered with his employer.”[63]The Tribunal has made a finding of fact that the claimant was not permitted to use the company vehicle for personal purposes. Accordingly, it was reasonable for the respondent to work on the understanding that the only time that the claimant would use the company vehicle would be while he was “on the clock” meaning within the respondent’s time.[64]Langstaff J endorsed the statement of Longmore LJ in Rugby Football Union v Viagogo Ltd [2011] EWCA Civ 1585 that: “once it is established that there is arguable wrongdoing… there can be no reasonable expectation of privacy in respect of data which reveals such arguable wrongdoings…”.[65]Further, Langstaff J stated: “It may rightly be said that any criminal act involves the public, that is why such acts are, with only rare exceptions, prosecuted in the name of the Crown acting, as the Crown does, on behalf of the public; the offence is against the public and the public have an interest in it. In principle, therefore, a crime invites publicity and cannot legitimately demand privacy.”[66]The Tribunal has made a finding of fact that the claimant drove the company vehicle at speeds far in excess of legal speed limits. Such conduct is unlawful and may reasonably be considered to pose a risk to the health and safety of the claimant and other road users, and to the assets and reputation of the respondent company. Further, such conduct is a criminal offence and there is a legitimate public interest in such conduct being discovered and stopped. The vehicle tracker was the only means for the respondent to discover the claimant’s wrongdoing.[67]Having considered the findings of fact and the principles set out above, the Tribunal concludes that the claimant could have no reasonable expectation of privacy when using the company vehicle and, as such, Article 8(1) is not engaged.[68]In the event that the Tribunal is wrong, and Article 8(1) is engaged, Article 8(1) does not impose a positive obligation on the state to secure the enjoyment of the right to privacy and family life between private persons. However, for completeness, the Tribunal has considered the remaining question set out at paragraph 59c above. The Tribunal suggests that the question should be reframed in the context of this complaint to: were the respondent’s actions in interfering with the claimant’s right to privacy and family life by using vehicle tracker information obtained without the claimant’s knowledge or consent when deciding whether to dismiss the claimant justified?[69]The Tribunal concludes that the claimant could have no reasonable expectation of privacy when using the company vehicle, for the reasons set out above. Further, the Tribunal has made a finding of fact that the claimant’s conduct in driving the company vehicle at speeds far in excess of legal speed limits was unlawful and may reasonably be considered to pose a risk to the health and safety of the claimant and other road users, and to the assets and reputation of the respondent company. Had the claimant had an accident when driving at such speeds, the outcome could have been catastrophic and have included death or very serious injury for the claimant and anyone else involved. The vehicle tracker was the only means for the respondent to discover the claimant’s wrongdoing.[70]In light of the above, the Tribunal concludes that the respondent’s actions in using vehicle tracker information obtained without the claimant’s knowledge or consent when deciding whether to dismiss the claimant was justified.[71]Accordingly, the Tribunal concludes that the respondent’s actions in obtaining and relying upon vehicle tracker data did not undermine the reasonableness of the investigation conducted by the respondent or the decision to dismiss the claimant. The Tribunal will consider the application of section 98 ERA in further detail below. Unfair Dismissal[72]Section 94(1) ERA provides that an employee has the right not to be unfairly dismissed by his employer. Enforcement of the right is by way of a complaint to a Tribunal under section 111 ERA.[73]The section 94(1) ERA right is subject to section 108(1) ERA, which provides that section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination. The claimant was continuously employed for a period of more than two years ending with the effective date of termination, being 21.06.2024 (Finding of Fact, paragraph 14). The claimant therefore has the right to raise a complaint under section 94(1) ERA.[74]Under section 95 ERA, the claimant must show that they were dismissed by the respondent. The parties agree that the claimant was dismissed by Mr Murray acting on behalf of the respondent and that the effective date of termination was 21.06.2024.[75]Section 98 ERA deals with the fairness of dismissals. There are two stages to section 98 ERA. The first stage (section 98(1)) provides that, in determining whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason (or if more than one, the principle reason) for dismissal and that that reason is either a reason falling within section 98(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position with the employee held. Section 98(2) sets out the potentially fair reasons for dismissal which include section 98(2)(b) a reason which relates to the conduct of the employee.[76]The second stage (section 98(4)) of the Employment Rights Act 1996 provides that where the employer has fulfilled the requirements of section 98(1), the Tribunal must determine whether the dismissal is fair or unfair without there being any burden on either party (having regard to the reason shown by the employer). Section 98(4) provides that the question of whether the dismissal is fair or unfair:(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 the equity and substantial merits of the case.[77]The determination of the question of whether the dismissal is fair or unfair, in accordance with section 98(4) of the Employment Rights Act 1996 is to be determined by the Tribunal in line with well-established guidance from the decisions of British Home Stores Ltd v Burchell 1978 IRLR 379, Iceland Frozen Foods v Jones 1982 IRLR 439, Post Office v Foley 2000 IRLR 827 and Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23. The Tribunal must not substitute its view for that of the reasonable employer, but must instead ask itself the following:a. At the time of dismissal, did the respondent genuinely believe the claimant to be guilty of misconduct? If so, was that belief based on reasonable grounds?b. At the time that the respondent formed that belief on those grounds, had it carried out as much investigation as was reasonable in the circumstances?c. Was the respondent’s decision to dismiss the claimant was within the band of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted?[78]Finally, the Tribunal must consider whether the respondent followed a reasonably fair procedure. This will include consideration of whether the respondent complied with the requirements of the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[79]The Tribunal must decide whether the respondent acted within the band of reasonable responses open to an employer in all aspects of the case, including the grounds for belief, the investigation, the decision to dismiss and the procedure followed. It is immaterial how the Tribunal would have handled the events or what decision it would have made. The Tribunal must not substitute its own view for that of the reasonable employer. (Iceland Frozen Foods v Jones 1982 IRLR 439 and Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23).[80]Section 122(2) ERA states that where the Tribunal considers that any conduct of the claimant before dismissal was such that it would be just and equitable to reduce the amount of the basic award the Tribunal shall reduce that amount accordingly. Section 123(6) ERA states that where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.[81]In Nelson v B.B.C. 1979 WL 69175 when interpreting the section 123(6) conditions for reducing the compensatory award, Lord Justice Brandon confirmed that confirmed that it is open to the Tribunal to deal with all aspects of the assessment of compensation including the question of reduction of compensation where that is just and equitable to do so. LJ Brandon held that two findings must be made: “The first finding which is necessary is a finding that the matters to which the complaint relates were to some extent caused or contributed to by some action of the complainant in connection with those matters… The second finding which is necessary is a finding that, having regard to the first finding, it is just and equitable to reduce the assessment of the complainant's loss to a specified extent.” LJ Brandon further confirmed that, when determining the question of what is just and equitable it is necessary to consider that “an award of compensation to a successful complainant can only be reduced on the ground that he contributed to his dismissal by his own conduct if the conduct on his part relied on for this purpose was culpable or blameworthy.”[82]In Langston v Department for Business Enterprise and Regulatory Reform EAT 0534/09, it was confirmed that the same requirement for the claimant’s conduct to be culpable or blameworthy applies to the conditions for reducing the basic award.[83]The case of Steen v ASP Packaging Ltd 2014 56, EAT set out the correct approach for the Tribunal to follow when considering a reduction of the basic award under section 122(2). The Tribunal must:a. Identify the conduct which is said to give rise to contributory fault;b. Decide whether that conduct is culpable or blameworthy; andc. Decide whether it is just and equitable to reduce the amount of the basic award to any extent.[84]When considering a reduction of the compensatory award under section 123(6) there must be a causal link between conduct and dismissal, which means that:a. The conduct must have taken place before dismissal;b. The respondent (employer) must have been aware of the conduct; andc. The respondent (employer) must have dismissed the claimant (employee) at least party in consequence of that conduct.[85]Section 123(1) ERA permits the Tribunal to make a compensatory award of what is just and equitable in all the circumstances. In Polkey v A E Dayton Services Limited [1988] ICR 142 it was established that, when considering what is just and equitable, the Tribunal may take into account the likelihood that the claimant would have been dismissed anyway even if the employer had acted fairly.[86]Finally, Section 1 ERA requires employers to give employees a written statement of initial employment particulars. Where there is no section 1 written statement of initial employment particulars and a complaint of unfair dismissal has been upheld, section 38 Employment Act 2002 provides that the tribunal must make an award of an amount equal to either two weeks pay or four weeks’ pay. Wrongful Dismissal[87]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the Order”) gives the tribunal the power to deal with claims for breach of contract.[88]An employee will not be entitled to notice of termination under their contract of employment if they have breached the contract of employment and the employer has terminated the contract in response to that breach.[89]However, not all breaches of contract by an employee will entitle the employer to terminate the contract without notice. The breach must be a repudiatory or fundamental breach of contract. For example, where the employee commits and act of gross misconduct and is dismissed as a result.[90]In Laws v London Chronicle (Indicator Newspapers) Ltd 1959 1 WLR 698, CA Lord Justice Evershed advised that in order to amount to a repudiatory breach, the employee’s behaviour must disclose a deliberate intention to disregard the essential requirements of the contract.[91]Where there has been no repudiatory or fundamental breach of contract by the employee, and the employer has failed to give notice in breach of the employee’s contract of employment, the employee is entitled to damages. The purpose of damages is to put the employee in the position they would have been in had both parties performed their obligations according to the contract. Discussion and Decision[92]The Tribunal has applied the findings of fact and relevant law set out above to the issues to be determined, as follows. Unfair Dismissal[93]What was the reason or principal reason for the claimant’s dismissal? And, was the reason for dismissal a potentially fair reason under section 98(1) and 98(2) ERA?[94]Within the disciplinary procedure, the respondent was concerned with two allegations of misconduct being:(i) regular speeding; and,(ii) unauthorised and untaxed personal use of the company vehicle at weekends. The Tribunal has made a finding of fact that the principal reason for dismissal was the first allegation (regular speeding) and Mr Murray’s conclusion that the claimant had been driving at speeds of up to 105mph in the company vehicle (see Finding of Fact paragraph 52). The reason for dismissal is therefore the claimant’s conduct, which falls within section 98(2) ERA.[95]Was the respondent’s belief in the reason (i.e. the claimant’s alleged misconduct) genuinely held?[96]The Tribunal concludes that Mr Murray, on behalf of the respondent, genuinely believed that the claimant had been regularly speeding and had driven at speeds that significantly exceeded the lawful speed limits and had reached 105mph. This belief was based on:(i) vehicle tracker data for the company vehicle assigned to the claimant, which both the claimant and Mr Murray confirmed could only have been driven by the claimant at the dates and times shown on the vehicle tracker; and(ii) the admission by the claimant on 30.05.2024 when asked whether he had been speeding in the company vehicle to which he responded “I like speed Pete”.[97]Were there reasonable grounds for the respondent’s belief?[98]Mr Puar on behalf of the claimant contends that there are no reasonable grounds for the respondent’s belief because the vehicle tracker information was obtained illegally. The Tribunal concludes that, having become aware of the vehicle tracker information, it was reasonable for the respondent to take this into account and for it to inform Mr Murray’s belief. On the contrary, the Tribunal concludes that a reasonable employer, on becoming aware that an employee had driven a company vehicle at speeds of up to 105mph, could not reasonably be expected to disregard such information particularly given the risk that such conduct could pose to the employee, the public and to the company vehicle.[99]At the time the respondent’s belief was formed, had the respondent carried out a reasonable investigation?[100]The Tribunal concludes that the investigation into the allegation of speeding was sufficient to establish the necessary facts (see Findings of Fact paragraph 35). The vehicle tracker information confirmed the dates and times at which the company vehicle was driven and the maximum speed reached. Both the claimant and Mr Murray confirmed that the vehicle could only have been driven by the claimant at the dates shown on the vehicle tracker. The claimant was asked about the allegation that he had been speeding in the company vehicle and reached a speed of 105mph in the fact finding meeting on 30.05.2024. The claimant responded to say “I like speed Pete” and that he was doing it to save the respondent money, as he was spending less time on the road. The Tribunal concludes that this was sufficient investigation to determine the speeds at which the company vehicle had been moving, the frequency with which the company vehicle had been moving at speeds in excess of lawful speeds limits and that there could be no other person responsible.[101]Mr Puar for the claimant contends that the investigation was flawed and unreasonable because (in his assessment) it relied solely on illegally gathered evidence and failed to take into account the claimant’s explanation. The claimant’s explanation, given in the fact finding meeting of 30.05.2024, was taken into account by Mr Murray in reaching his decision to dismiss. Further, the Tribunal has made a finding of fact that, had the claimant attended a disciplinary hearing, he would not have said anything else in explanation that would have altered Mr Murray’s decision to dismiss (see Findings of Fact paragraphs 52, 55-56). The Tribunal concludes above (paragraph 71), that the respondent’s actions in obtaining and relying upon vehicle tracker data did not undermine the reasonableness of the investigation. The Tribunal is satisfied that Mr Murray had conducted a fair and reasonable investigation before forming the belief that the claimant had been speeding.[102]Did the respondent act reasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason (i.e. the claimant’s alleged misconduct) as a sufficient reason to dismiss the claimant?[103]The claimant’s actions in repeatedly driving in excess of lawful speed limits, including reaching speeds of 105mph, were unlawful and put himself and other road users at risk. The Tribunal does not accept the claimant’s assertion that he had assessed his actions were not dangerous. Had the claimant had an accident when driving at such speeds, the outcome could have been catastrophic and have included death or very serious injury for the claimant and anyone else involved. In addition, had an accident taken place in a company vehicle, this could have resulted in liability for the respondent, plus financial losses relating to company property, and harm to reputation. The Tribunal concludes that the claimant’s actions amounted to gross misconduct and were sufficient reason to dismiss the claimant.[104]Was dismissal within the band of reasonable responses of a reasonable employer?[105]The claimant asserted that, had Mr Murray asked him to slow down, he would have done so. The Tribunal has considered whether a reasonable employer would have imposed an alternative disciplinary sanction on the basis of an agreement from the claimant to slow down. The Tribunal has made a finding that, given the claimant was not willing to comply with legal requirements to drive more slowly, it is reasonable to conclude that he may not have been willing to comply with a request from his employer (see Finding of Fact paragraph 56).[106]A reasonable employer, on learning that a company vehicle was being driven at speeds of up to 105mph would rightfully be concerned about what the implications of this would be with regard to the danger posed to the person driving the vehicle and any other road users. A reasonable employer would consider that an accident at such speeds would pose a risk of death or serious injury, which of itself would be unacceptable. Further, a reasonable employer would rightfully be concerned about the liability, financial costs and reputation harm they may incur for such accident as the owner of the vehicle and employer of the driver. The Tribunal concludes that a reasonable employer would consider that such actions amounted to gross misconduct and warrant dismissal.[107]Did the respondent otherwise act in a procedurally fair manner?[108]The Tribunal concludes that the following paragraphs of the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 are engaged:a. Paragraph 9: the claimant should have received notification containing sufficient information of the alleged misconduct and the possible consequences to enable him to prepare to answer the case as the disciplinary hearing. Although a more detailed outline of allegations in the letter of 03.06.2024 would have been advisable, the Tribunal has made a finding that, taking into account the discussion in the fact finding meeting on 30.05.2024, the information in the letter of 03.06.2024 and the vehicle tracker information provided on 10.06.2024, the claimant had sufficient information about the allegation of regular speeding (see Finding of Fact paragraph 44).b. Paragraphs 11 and 12: the respondent should have met with the claimant to discuss the alleged misconduct, go through the evidence, allow the claimant to set out his case, ask questions and present evidence. The Tribunal has made a finding of fact that the respondent failed to do this and did not inform the claimant that it may make a decision in his absence (see Finding of Fact paragraph 48). Further, the Tribunal has made a finding of fact that the respondent failed to respond to the claimant’s letter of 26.06.2024 (see Finding of Fact paragraph 50). However, the Tribunal has also made findings of fact that the claimant could not have said anything in a disciplinary hearing that would have altered Mr Murray’s decision to dismiss him (see Findings of Fact paragraphs 50, 55-56).c. Paragraph 22: the claimant should be informed of their right of appeal. The letter of dismissal, dated 21.06.2024 did not include details of the claimant’s right of appeal. However, the Tribunal has made a finding of fact that the claimant would not have submitted an appeal in any event (see Findings of Fact paragraph 49).[109]Having considered the above, the Tribunal concludes that the respondent failed to act in a procedurally fair manner. Accordingly, although the Tribunal has found that the decision to dismiss the claimant was reasonable, the procedure followed was not within the band of reasonable responses of a reasonable employer and so the Tribunal concludes that the decision to dismiss the claimant was unfair.[110]Did the claimant contribute to the decision to dismiss him and, if so, to what extent?[111]The claimant drove at speeds far in excess of lawful speed limits on multiple occasions within the short period of time for which vehicle tracker information was available (see Findings of Fact paragraph 30). When asked about his conduct in the fact finding meeting of 30.05.2024, the claimant showed no remorse or contrition and instead responded “I like speed”. When asked about his conduct in the Tribunal hearing, the claimant continued to show a lack of understanding of or consideration for the risk posed to himself or others.[112]Mr Puar on behalf of the claimant suggests that any consideration of contribution on behalf of the claimant should be weighed against the concern that it would be against public policy to allow an employer to rely on vehicle tracker information that he asserts was illegally obtained. The Tribunal has already considered these issues and concludes above that it was reasonable for the respondent to rely on the vehicle tracker information.[113]Looking first at the basic award. The Tribunal concludes that the conduct which is said to give rise to contributory fault is the claimant’s actions in driving in excess of lawful speed limits on multiple occasions and showing no remorse or contrition when challenged. The Tribunal concludes that this conduct was wholly within the claimant’s control and the claimant chose to conduct himself in this way, the conduct is therefore culpable and blameworthy. Given the serious risk that the claimant’s conduct posed to himself, to others and to the respondent, the Tribunal concludes that it is just and equitable to reduce the basic award by 100%.[114]Looking second at the compensatory award. The Tribunal concludes that the conduct took place before the claimant was dismissed, that the respondent was aware of the conduct and that, as set out above, the conduct was the principal reason for dismissal. The Tribunal concludes that the claimant’s conduct was culpable and blameworthy. Given the serious risk that the claimant’s conduct posed to himself, to others and to the respondent, and given the lack of remorse or contrition shown by the claimant when challenged, the Tribunal concludes that it is just and equitable to reduce the compensatory award by 100%.[115]Would the unfair dismissal would have been a fair dismissal if only a more reasonable procedure had been followed and if so what was the chance that the claimant would have been fairly dismissed in any event? Is it appropriate to apply a reduction in accordance with Polkey v AE Dayton Services Ltd?[116]The Tribunal has made a finding that, if the claimant had attended a disciplinary hearing, he could not have said anything that would have altered the respondent’s decision to dismiss him. The Tribunal concludes that, if the respondent had rearranged the disciplinary hearing to take place in week commencing 17.06.2024 and informed the claimant that if he did not attend a decision would be made in his absence, then the respondent would have reached the same decision to dismiss the claimant by no later than 28.06.2024. The Tribunal therefore concludes that any compensatory award should be limited to such losses as the claimant may have incurred in the period up to and including 28.06.2024. However, as the Tribunal concludes that any it is just and equitable to reduce the amount of any basic award and compensatory award by 100%, no further findings are made in respect of this issue.[117]Did either party fail to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and, if so, whether it is just and equitable to increase or reduce the award of compensation to reflect this failure.[118]Although the respondent made some effort to comply with the Code (which included conducting a reasonable investigation, putting the allegations to the claimant in a fact finding meeting, inviting the claimant to a disciplinary hearing, advising the claimant of his right to be accompanied, agreeing to rearrange the disciplinary hearing to give the claimant more time to prepare and providing written confirmation of its decision), the Tribunal concludes that the respondent failed to comply with parts of the Code as outlined above (paragraphs 108-109). However, as the Tribunal concludes that any it is just and equitable to reduce the amount of any basic award and compensatory award by 100%, no further findings are made in respect of this issue.[119]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? 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. Would it be just and equitable to award four weeks’ pay?[120]The claimant was issued with a letter setting out the particulars of his employment on 30.03.2020 (see Findings of Fact paragraph 10). This letter was sufficient to comply with the requirements of section 1 ERA 1996. Although the claimant left his employment briefly in July 2023, this was for a period of less than one week and did not break the claimant’s continuous service (see Findings of Fact paragraphs 12-14). The Tribunal concludes that the claimant’s return to work was not a new period of employment and the respondent was not obliged to give the claimant a new written statement of initial employment particulars. Accordingly, the Tribunal concludes that the respondent was not in breach of its duty to give the claimant a written statement of employment particulars. Wrongful Dismissal[121]In relation to the complaint of wrongful dismissal, the following issues were to be determined by the Tribunal.[122]Did the claimant fundamentally breach the contract of employment by committing an act of gross misconduct? If so, did that have the effect of releasing the respondent from the obligation to give the claimant four weeks’ notice or pay in lieu of notice?[123]The Tribunal concludes above that the claimant’s actions in driving at speeds of up to 105mph in a company vehicle amount to gross misconduct. The Tribunal further concludes that the claimant’s actions were sufficient to fundamentally breach the contract of employment and release the respondent from the obligation to give the claimant notice or pay in lieu of notice.[124]The Tribunal notes that the respondent paid the claimant one week’s pay in lieu of notice. However, the Tribunal concludes that this does not indicate that the respondent waived the claimant’s breach of contract.