K Angel v Brake Bros Ltd: 6010877/2024
JUDGMENT
[1]The complaint of unfair dismissal is well-founded and succeeds. There will be a 25% reduction in the basic award and the compensatory award due to blameworthy conduct which caused or contributed to the dismissal.[2]The complaint of wrongful dismissal is well-founded and succeeds. Employment Judge Liz Ord Date 30th September 2025 Judgment sent to parties on: Date: 14th October 2025 For The Tribunal Office Case No: 6010877/2024 Notes 1. Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided, they will be displayed on the tribunal’s online register of judgments, which is visible to internet searches. Case No: 6010877/2024 EMPLOYMENT TRIBUNALS Claimant: Keith Angel Respondent: Brake Bros Limited Heard at: Croydon by CVP On: 29 and 30 September 2025 Before:REASONS
[1]The claimant complains of: 1.1. Unfair dismissal 1.2. Wrongful dismissal[2]The issues for the tribunal are set out in the attached Annex.[3]The hearing only dealt with liability plus Polkey and contributory conduct.Evidence
[4]The tribunal had before it the following documentary evidence: a documents bundle of 214 pages, a witness statement bundle of 25 pages, a video clip of the incident, and an agreed list of issues. Case No: 6010877/2024[5]On behalf of the claimant we heard evidence on oath from: 5.1. Keith Angel (the claimant).[6]On behalf of the respondent we heard evidence on oath from: 6.1. Arron Citroni (disciplinary officer and Operations Manager at Brighton depot). 6.2. Daniel Russell, appeal officer and Distribution Manager at Aylesford depot).[7]Number references in brackets [01] are to the electronic page number in the documents bundle. References in brackets in the format [XX 01 para 01] are to page and paragraph numbers within witness statements.[8]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The tribunal has not referred to every document it read and/or was taken to in the findings below, but that does not mean it was not considered if the tribunal was taken to the document in evidence or as part of a reading list.The Law
[9]Section 98 of Employment Rights Act 1996 provides, so far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it- a) … b) Relates to the conduct of the employee c) … 98(4) 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 equity and the substantial merits of the case.[10]The ACAS Code of Practice 1 on Disciplinary and Grievance Procedures Case No: 6010877/2024 2015 applies to the procedure followed.[11]Wrongful Dismissal A dismissal by the employer in breach of contract, gives rise to an action for wrongful dismissal at common law. The reasonableness or otherwise of an employer’s actions is not relevant. What has to be considered is whether the employment contract has been breached. The tribunal must be satisfied, on a balance of probabilities, that there was a repudiation of the contract by the employee.[12]Other law All other law/caselaw as raised by the parties was considered.Findings of Fact
[13]The respondent is a national wholesale food company. The claimant was employed by the respondent from 1 March 1998 until 8 May 2024 when he was summarily dismissed for gross misconduct. The claimant had worked for the respondent for 26 years at the time of his dismissal and had never been disciplined during this period.[14]From 1 June 2023 the claimant stepped up to being a Warehouse Shift Manager at the Brighton depot. Due to refurbishment at Brighton, he was temporarily transferred to the Harlow depot in Spring 2024.[15]At the Brighton depot, the claimant only shunted at the beginning of a shift. However, after being at Harlow for a week, he was expected to shunt all day. Driving was not his normal job role and he was last formally trained in it in 2020. He was finding the job difficult at Harlow and asked for help and to be taken off shunting. This did not happen.[16]The respondent has policies on mobile phone usage whilst driving.[17]The Disciplinary Policy of April 2022 gives examples of gross misconduct, which would normally result in summary dismissal [52]. This encompasses: serious breaches of rules relating to health and safety, and committing an illegal act in a company vehicle including use of mobile phones whilst driving.[18]The Mobile Device Policy of September 2023 talks about health and safety and says that it is illegal to hold and use a phone whilst driving, and that devices should not be held for any reason whilst driving [62]. This was updated in May 2024.[19]It is the respondent’s position that from September 2023 they operated a zero tolerance policy to mobile phone usage whilst driving. The Disciplinary Policy was not updated and did not reflect this zero tolerance approach.[20]The September Policy was introduced after there had been incidents of drivers using mobile phones whilst driving. Case No: 6010877/2024[21]An employee by the name of Jareck was caught using a mobile phone whilst driving in 2021 and was issued with a final written warning.[22]In August 2023, a Transport Team Manager at Brighton, Steve Davie, used a mobile phone whilst driving on a public road and was issued with a final written warning.[23]On 21 April 2024 the claimant was caught on CCTV shunting a lorry in the Harlow depot whilst holding and conversing on his mobile phone for about 5 minutes. During this time he was holding the steering wheel with only one hand, and at one point he egressed the vehicle and got back in, still holding and talking on his mobile phone.[24]At this point in time, the September Mobile Device Policy was in force.[25]On 22 April Jordan Hobbs, the Night Transport Team Manager, saw the video footage and held an investigation meeting with the claimant to consider whether there had been misconduct. He asked the claimant generally whether he knew what the policy was when using a mobile device whilst driving a vehicle and the claimant confirmed that he did and that mobiles were not to be used whilst driving. He admitted that he had done wrong.[26]The September Mobile Device Policy was not mentioned or put to the claimant at the meeting. The claimant gave evidence that he thought Mr Hobbs was referring to the Disciplinary Policy of 2022 and that he was not aware of the September Mobile Device Policy.[27]During the meeting Mr Hobbs suspended the claimant from driving pending the outcome of the investigation. He was not suspended from other work [meeting minutes 85-87].[28]The meeting was reconvened on 23 April for Mr Hobbs to obtain more information [minutes 88-93]. The claimant said he was rushing to get the job done. Mr Hobbs raised the issue of safety and the claimant said he was under too much pressure from his boss at Gatwick and he was cutting corners, which he shouldn’t have. The claimant contends that, had he not been under such significant pressure, he would have been in a better state of mind and would not have used the mobile phone whilst driving [KA p4 para 12].[29]I accept that work pressure was the reason for the claimant using the mobile phone[30]Mr Hobbs asked whether the claimant had raised the issue of pressure with anyone and the claimant referred to an email he had sent to Mr Hobbs himself about the situation. The claimant said it was stupid of him to use the phone but the conversation was work related and was about fines and updating the planning tool. He said he had too much on. The claimant said he would not do it again and would only answer the phone in the warehouse to be safe. He apologised for his incompetence.[31]On 1 May 2024 the claimant was invited to a disciplinary hearing to answer the allegation of interacting with a mobile phone whist in control/operating a company vehicle around the yard at the Harlow depot. He was sent the Case No: 6010877/2024 investigation meeting notes and the company’s disciplinary rules and procedures [83-4].[32]The disciplinary hearing took place on 8 May 2024 and was conducted by Arron Citroni [minutes at 96 – 101]. Mr Citroni asked the claimant whether he knew about the policy with mobile usage whilst in control of a vehicle, but did not specifically refer to the September policy. Whilst the claimant answered yes, he thought it was the Disciplinary Policy that was being referred to.[33]He told Mr Citroni that he was frustrated because he was trying to organise the operation, moving vehicles around and trying to make space for parking and vehicles. He said he’d spoken to Jordon Hobbs on the Wednesday asking if he could come off shunting, but his reply was basically to suck it up. He then emailed Mr Hobbs saying that he could not shunt because he needed to oversee the loading of the vehicles, but he got no reply. He spoke to Mr Hobbs about it again on the Sunday but got no reply [98-99]. The claimant said to Mr Citroni that if they planned it a lot better then maybe he wouldn’t have been on his phone as much.[34]The claimant accepts that he was interacting with a mobile phone whilst manoeuvring the vehicle, but points out that it was on private property and says that it was done safely.[35]Mr Citroni did not specifically mention either the September policy or the May policy and the claimant thought that it was the Disciplinary Policy that was being referred to.[36]Mr Citroni sent the claimant a termination letter dated 9 May 2024 [101-102]. It took into account the claimant’s length of service and his clean disciplinary record. It noted that, as a Warehouse Shift Manager, he was a leader of people and should be leading by example. It referred to the company’s disciplinary rules and procedures, and noted that dismissal was an option open to Mr Citroni. It referred to the company no longer having complete trust in the claimant and confirmed his dismissal. There was no mention of the pressure the claimant had been under at work.[37]Mr Citroni in evidence said he did not explore any other sanctions because the company had a zero tolerance policy.[38]The claimant appealed by email dated 13 May [104], which he followed up with a letter dated 18 May [110]. The basis of the appeal was that he felt he had been treated too harshly and that he should have been given a final written warning. He pointed to the other two colleagues who had committed the same offence and who were both given final written warnings, and he raised his exemplary employment record of 26 years.[39]The appeal hearing was arranged for 29 May with Daniel Russell as the appeal officer [invitation letter at 126].[40]At the hearing [minutes127-137] the claimant raised the fact that Steve Davie and the employee named Jareck, got warnings for the same offence, rather than being dismissed. Mr Russell said there was a clear business directive regarding mobiles and asked whether the claimant was aware of the policy. Whilst the claimant said yes, again he thought that the Disciplinary Policy was Case No: 6010877/2024 being referred to. Mr Russell did not specifically mention the September or May Mobile Device Policies.[41]I have not been taken to any evidence, which demonstrates that the claimant was specifically told about the September or May policies. Whilst Mr Russell’s evidence was that at his depot in Aylesford there were team briefings about the new Mobile Device Policies, there was no evidence that the same occurred in Brighton, where the claimant was based.[42]Although the respondent’s witnesses gave evidence that the policies were on the intranet and on the company’s App, the claimant’s evidence was that he was unaware of them. The claimant presented as a credible and reliable witness and I accept his evidence.[43]The claimant told Mr Russell about his requests to Mr Hobbs to come off shunting, and that he found it tough trying to clear areas to work, speeding things up and checking the planning tool [132]. Mr Russell asked the claimant why being under pressure made him be on the phone. The claimant answered that he was frustrated and not thinking and he had tried to explain to the manager, but the manager wasn’t interested [133]. The claimant went on to say that Harlow was big and he wasn’t prepared and didn’t know what to expect. Most days he was moving vehicles and didn’t want to flood the warehouse and make a health hazard [134].[44]The appeal outcome letter of 6 June 2024 [144] upheld the dismissal. Mr Russell took account of all matters raised by the claimant, and that the incident did not take place on a public road. However, the letter explained that, since the previous 2 incidents, the company had drawn a line in the sand and reiterated the Mobile Device Policy, clearly stating that use of a mobile device while driving was gross misconduct and that there was zero tolerance for this offence.[45]In January 2024 there was another mobile phone incident when an employee, Aston Kitchener, answered a handsfree call whilst driving a company vehicle in a public place. Steve Davie conducted a disciplinary hearing and Mr Kitchener was issued with a final written warning (211-12). He was not dismissed. Discussion and Conclusions Unfair dismissalDiscussion and Conclusions
[46]The evidence supports the fact that the claimant was dismissed for gross misconduct for interacting with a mobile phone whilst in control of and operating a company vehicle at the Harlow deport. Conduct is a potentially fair reason.[47]The disciplinary procedure was fair at all stages and, having heard the respondent’s witnesses, I take the view that they genuinely believed the claimant was guilty of gross misconduct based on the evidence and a zero tolerance interpretation of the September and May Policies. Case No: 6010877/2024[48]However, this was a one-off incident over the claimant’s 26 year career with the respondent, during which he held a clean disciplinary record.[49]He had recently been moved to Harlow temporarily and was put on driving duties, which he was not used to. He was finding the work pressure difficult and had asked for help, but none was forthcoming. He was expected to do too much, too quickly and this led him to cut corners by trying to do two things at once, namely, sorting matters out on his mobile phone whilst shunting vehicles. He was trying to get everything done under unusually pressurized circumstances that he was not used to.[50]The incident occurred on private property and, whilst it was still a safety concern, there was no risk to the public.[51]The claimant knew what he did was wrong, and apologised. It was out of character. Having accepted his wrongdoing and that it warranted disciplinary action, he was unlikely to repeat his mistake. This is supported by his previously clean record over many years.[52]There were other employees who had committed similar offences with mobile phones whilst driving and they had been given final written warnings. Although the respondent decided to draw a line in the sand on such behaviours by introducing the zero tolerance September 2023 Mobile Device Policy, this was not specifically brought to the claimant’s attention. The claimant only knew of the Disciplinary Policy, which was not a zero tolerance policy and allowed for some discretion.[53]Taking all the circumstances into account, particularly the claimant’s long service and clean disciplinary record, dismissal was not within the range of reasonable responses. The respondent did not act reasonably in all the circumstances by treating the misconduct as a sufficient reason to dismiss the claimant. Accordingly, the dismissal was unfair.[54]As I have found procedural fairness, Polkey does not apply.[55]With respect to conduct, the claimant contributed to his dismissal because of his behaviour. Therefore, I deduct 25% for blameworthiness. Wrongful dismissal[56]For the reasons given above, there was no repudiatory breach of the employment contract on the part of the claimant.[57]Therefore, the respondent breached the employment contract by summarily dismissing the claimant without notice pay. His dismissal was wrongful and accordingly his claim is well-founded and succeeds.