Mr J S Berrie v The Royal British Legion Scotland (Arbroath & District Branch): 8000147/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000147/2024

Between

Mr J S BerrieClaimant

The Royal British Legion ScotlandRespondent

Before

Employment Judge A Kemp

Date 4 September 2024

JUDGMENT

The response is struck out under rule 37 of the Rules contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 on the grounds :  of non compliance with an Order of the Tribunal in terms of rule 37(1)(c).  that the response has not been actively pursued in terms of rule 37(1)(d).

REASONS

Introduction

[1]This is a claim of automatic unfair dismissal on the grounds of protected disclosure, and other matters. The claimant applied for a strike out of the response on the ground of the respondent’s failure to comply with case management orders. The respondent was asked to comment on that by letter from the Tribunal dated 19 June 2024. A reminder was sent on 2 July 2024 when there was no reply.

[2]On 19 July 2024 the Tribunal gave the respondent an opportunity to give written reasons by 2 August 2024 or to request a hearing in order to consider why the response should not be struck out on .

[3]The respondent has failed to give an acceptable reason why such a judgment should not be made or to request a hearing. The Tribunal therefore strikes out the response.

[1]This was a Final Hearing held in relation to remedy only. The claimant is a party litigant.

[2]There had been a Preliminary Hearing held on 7 May 2024, after an application by the respondent for a postponement of that hearing had been refused on 22 April 2024. The respondent did not appear at it. A Note was sent with orders for case management, and a Final Hearing of five days was fixed.

[3]After that and following unanswered correspondence the Response was struck out by Judgment dated 13 August 2024 and sent to the parties on 21 August 2024. Notice of the present hearing, being an amended notice for a one day hearing as to remedy only, was sent to the parties also on 21 August 2024. There was no appearance at this Hearing by or on behalf of the respondent.

Claims

[4]The claimant makes the following claims, as set out in the Note of the Preliminary Hearing:(i) Constructive unfair dismissal under section 95 of the Employment Rights Act 1996.

(ii) Detriment and dismissal for having made protected disclosures under sections 47B and 103A of the Employment Rights Act 1996.

(iii) Breach of contract.

(iv) Unauthorised deductions from wages in relation to wages due during suspension.

(v) Failure to provide written particulars under sections 1 and 4 of the Employment Rights Act 1996

Evidence

[5]The claimant had earlier provided a Schedule of Loss and supporting documentation in accordance with the order made after the Preliminary Hearing. A Bundle of Documents was tendered and spoken to in part. The claimant gave evidence himself. After he had done so he stated that he wished to call Ms Kathleen Forbes-Hamilton, who I had been informed was accompanying him. I explained that ordinarily someone who had heard earlier evidence would not be called, but that I would hear what she had to say and consider whether or not to allow it. She then gave brief evidence, which in the event I did not consider material to the issues before me. Issue

[6]The sole issue before me is to what remedy is the claimant entitled.

Facts

[7]I found the following facts, material to the issue, to have been established.

[8]The claimant is James Scott Berrie. His date of birth is 19 June 1991.

[9]The respondent is the Royal British Legion Scotland, Arbroath and District Branch.

[10]The claimant was employed by the respondent from 1 October 2009 until 18 October 2023 as Assistant Bar Manager. He worked on average about 20 hours per week.

[11]From in or around July 2023 the claimant reported to the respondent concerns that he had relating to the Bar Manager, including as to health and safety. His reports included that items, including some that were bulky such as tables or stacks of chairs, were being left blocking exits, which was a risk in the event of fire, and that other items left were a trip hazard. That was a risk of injury to customers of the respondent, some of whom are partly sighted. His disclosures were made verbally initially to David Findlay, then the Chairman of the respondent, and then in July 2023 and afterward to Ms Lisa Robb who assumed the role of Chairman.

[12]On 14 September 2023 the claimant was suspended from work on allegations of bullying and harassment. That was confirmed by letter from the respondent dated that day.

[13]The next day the claimant went on a three week holiday, which he did not enjoy because of the suspension.

[14]On 12 October 2023 the claimant attended a pre-hearing meeting with the respondent. On the same day he raised a grievance with the respondent to which he received no reply.

[15]On 15 October 2023 he was informed by letter and at a meeting with Ms Robb that he was to receive a written warning to last for six months in relation to an alleged health and safety matter, not in relation to the allegations of bullying and harassment which were not to proceed. No disciplinary hearing with him had been held. He was informed orally that day that his hours of work would reduce from 20 per week to 5 per week.

[16]On 18 October 2023 the claimant wrote to the respondent terminating his employment with immediate effect on the basis of what he considered a material breach of contract by them. He stated that he believed that he had suffered detriment due to “whistleblowing”.

[17]Prior to the termination of employment with the respondent the claimant had gross pay of £242.72 per week, and net pay of £194.18 per week under the NEST scheme. The respondent contributed £3.68 per week to his pension. He drove to work which was a total of 6 miles per week.

[18]The respondent provided a Statement of Particulars when he commenced employment, but did not provide the claimant with a written Statement of the particulars of his employment when his role changed from the initial one when he started providing door security, to that in about 2016 to Assistant Bar Manager, or in relation to increases in the level of pay. He was paid at the rate of the national minimum wage.

[19]The claimant did not receive payment for working on 14 and 15 October 2023.

[20]The claimant was unemployed until 18 November 2023. He did not receive any State Benefits. He attended two job interviews prior to starting work and travelled to Montrose to do so. He works in his new role on average 18 hours per week and is paid at the rate of the national minimum wage, currently at £11.44 per hour. His pay varies from week to week, but is on average about £200 per week, with £4.22 per week on average for pension contributions under the NEST scheme. The total income is £204.22 per week accordingly, His new role is in Montrose on four days per week and he has a 28 mile car journey each working day to attend it. The cost of that is reasonably assessed at £0.45 per mile. He was upset by the events leading to the termination of his employment.

[21]The claimant commenced early conciliation on 19 October 2023. A Certificate in relation to the same was issued on 30 November 2023. The present Claim was presented on 16 February 2024.

The law

[22]What constitutes a dismissal is determined by section 95(1)(c) of the Employment Rights Act 1996 (“the Act”). The nature of the implied term in a contract of employment was addressed in James-Bowen v Commissioner of Police of the Metropolis

[2018] UKSC 40

under reference to Malik v Bank of Credit and Commerce International

[1998] AC 20

. Fairness is determined by section 98(4). Provisions as to protected disclosures are within sections 43, 44, 47 and 103A. Unauthorised deductions are provided for in Part II of the Act. Remedy for unfair dismissal is provided for in sections 119 – 124A. There is a right to a basic award, and to a compensatory award.

[23]Where there is a failure to follow the provisions of the ACAS Code of Practice on Disciplinary and Grievance Procedures the Tribunal may, at its discretion, increase the award by up to 25%.

[24]In the event of a failure to provide the statement of particulars under section 1 of the Act or as to a change under section 4 an award of up to four weeks’ pay may be made where other relevant claims succeed.

[25]In the event of a finding of detriment or dismissal for having made a protected disclosure an award for injury to feelings may be made, as was addressed by the EAT in Virgo Fidelis Senior School v Boyle

[2004] IRLR 268

and Commissioner of Police for the Metropolis v Shaw

[2012] IRLR 291

with the amount of the award to be in accordance with the Vento guidelines. Three bands had been set out for awards for injury to feelings in Vento v Chief Constable of West Yorkshire Police (No 2)

[2003] IRLR 102

in which the Court of Appeal gave guidance on the level of award that may be made. The three bands referred to in that authority were described with the following explanation: “i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.”

[26]In Da'Bell v NSPCC

[2010] IRLR 19

, the EAT held that the levels of award for injury to feelings needed to be increased to reflect inflation. In De Souza v Vinci Construction (UK) Ltd

[2017] IRLR 844

, the Court of Appeal suggested that it might be helpful for guidance to be provided by the President of Employment Tribunals (England and Wales) and/or the President of the Employment Appeal Tribunal as to how any inflationary uplift should be calculated in future cases. The Presidents of the Employment Tribunals in England and Wales and in Scotland thereafter issued joint Presidential Guidance updating the Vento bands for awards for injury to feelings, which is updated annually. That in the Sixth Addendum for claims presented after 6 April 2023 has a lower band which is up to £11,200, and a middle band from that figure to £33,700.

Discussion

[27]I was satisfied that the claims were within the jurisdiction of the Tribunal and that the claimant was a credible and reliable witness (as was Ms Forbes-Hamilton, although I did not consider that her evidence added materially to what was before me). There was no defence to the claims given the strike out of the Response, but it did seem to me appropriate to enquire as to the circumstances that led to the claimant resigning and what he claimed were protected disclosures. Having done so I was satisfied that the claimant had a reasonable belief that there were issues of health and safety from the blocking or partial blocking of exits that could be a risk in the event of fire, and that he had a reasonable belief that that was in the public interest when disclosing them orally to Ms Robb. There was then a suspension, a warning and a reduction of hours to the extent of 75%. The sequence of events led to the possibility of an inference being drawn that his raising the disclosure was the sole or principal reason for the events on 14 September 2023, and on 15 and 18 October 2023 and the absence of a defence results in that inference being made.

[28]Separately it was clear that the circumstances of the termination of employment did amount in law to a dismissal. There was a breach of the implied term as to trust and confidence explained in authority. The respondent imposed a disciplinary sanction without any form of advance notice, or hearing, and in doing so contravened the terms of the ACAS Code in a number of respects. There was the imposition of a material reduction in hours from 20 to 5 without any proper consultation or process. This was a clear unfair dismissal, in my view, under the terms of sections 94 and 98, as well as being automatically unfair under section 103A.

[29]The first element of the remedy for unfair dismissal is the basic award. This is calculated in the Schedule of Loss at £2,912.64. That appears to me the correct calculation having regard to the terms of section 119.

[30]The second element is the compensatory award which is to be calculated under sections 123 – 124. Whilst the claimant in his Schedule of Loss also sought an award for breach of contract that does not add anything to remedy, as the same losses cannot be sought twice. I considered it appropriate to deal with all losses within the compensatory award.

[31]The claimant’s net pay was £194.18 per week, and inclusive of pension of £3.68 the total was £197.86 per week. .

[32]The first period is to the date on which he started his new role. That is of 4 weeks and the loss is the sum of £791.44.

[33]The second period is from then until now. The new pay is at the same minimum hourly rate as with the respondent, but he now works on average two hours per week less. It appears to me that the appropriate loss is of two hours per week at the level of the minimum wage, that being what he was paid in both employments, then reduced for statutory deductions. For the period 18 November 2023 to 5 April 2024 the loss I assess at £16.67 per week net, of loss, and from 6 April 2024 to the date of this Judgment I assess at £18.30 per week net, of loss. That is 20 weeks for the first period and 22 weeks for the second. The calculations for loss of earnings for those two periods are therefore £16.67 x 20 = £333.40 and £18.30 x 22 = £402.60.

[34]The claimant also has additional travel costs of 28 miles for 4 days per week a total of 112 miles less the 6 miles per week he used to travel to work when working with the respondent, a difference of 106 miles per week. At £0.45 per mile the weekly additional cost is £47.70. The total additional cost for the two periods totals £2,003.40.

[35]These losses are to continue. The loss is of earnings of £18.30 and additional cost of £47.70 per week is a total of £66 per week. I assess future loss for a period of 26 weeks for which the sum is £1,716.

[36]The claimant has also had cost in attending two interviews in Montrose prior to starting his new role which I assess at £25. He lost statutory rights which I assess given his reasonably long service at £500.

[37]The compensatory award from the figures above is £5,438.44.

[38]To these awards I consider an increase is appropriate, being to both the basic and compensatory awards, for the wholescale failure to follow the ACAS Code of Practice. I have a discretion as to its amount, but in the circumstances of a series of failures, the lack of any appropriate process, and the imposition of a warning without giving the claimant notice of the allegation, the evidence in support of it, an opportunity to comment on it or to be accompanied at the disciplinary hearing, I consider that it is appropriately assessed at the full 25%. This increases the awards for the basic and compensatory awards to £3,640.80 and £6,798.05 respectively.

[39]There was an initial statement of particulars provided by the respondent, but it was not complete as it did not contain an hourly rate or similar, and there was not one provided when the role changed to Assistant Bar Manager, or when the hourly rates changed. There was a breach of sections 1 and 4 of the Act in that regard and I consider that an award of two weeks’ pay is appropriate for that, in the sum of £485.44.

[40]The claimant stated that he had not been paid for two days, being 14 and 15 October 2023. He sought 15 hours of pay at the rate of £10.76, but that did not take account of statutory deductions. It appeared to me that there had been an unauthorised deduction from wages due for the two days, and I awarded the sum of £115 as an estimate of the net pay for those two days that would have been received.

[41]The claimant also sought injury to feelings for the detriment as to suspension, and then the dismissal, for having made a protected disclosure. He sought £15,000. The award to be made is compensatory, not punitive. He raised in evidence some matters that I consider are outwith the scope of the Tribunal’s proper enquiry, such as allegations he said were made against him by the Bar Manager as to having stolen funds as the reason for his leaving. That is a separate matter in my view. It is the consequence of having made a protected disclosure that an award may be made.

[42]Whilst I am satisfied that he was upset by these events and in particular what was a dismissal, he did find new employment reasonably quickly, no medical assistance was sought, and it seems to me, from the evidence I heard, that the award should be at the higher end of the low Vento band. I assess the award at £10,000. The claimant also sought interest, but that applies in my view to discrimination claims only under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. I do not consider it appropriate to subject the award for injury to feelings to the same increase in respect of the failure to follow the ACAS Code.

[43]The total award I make is therefore the sum of £21,039.29.

[44]The claimant did not receive benefits and the recoupment provisions do not apply.

[45]Finally I would note that there had been an issue raised at the Preliminary Hearing as to the correct designation of the respondent. It has not engaged with the case since then, despite the terms of the Note in that regard, there is no evidence before me that would warrant a change from the designation in the Claim Form and it was not suggested by the claimant when giving evidence. The documents including the Statement of Particulars that was issued, and letters sent regarding suspension and the disciplinary sanction, were in essentials in the name used in the Claim Form. That has been used in this Judgment accordingly.

[46]For completeness I should add that I was concerned at the apparent disregard for basic provisions of employment law on the part of the respondent. I did consider whether to impose a financial penalty under section 12A of the Employment Tribunals Act 1996 in light of that, but have, on a narrow margin, decided against doing so.