l Sutherland v Aberdeen Mastic & Services Ltd: 8000534/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000534/2023

Venue Aberdeen

Hearing 19 February 2024

Between

lain SutherlandClaimant

Aberdeen Mastic & Services LtdRespondent

Before

Employment Judge N M Hosie

Date 23 February 2024

JUDGMENT

The Judgment of the Tribunal is that the claim is dismissed.

REASONS

[1]lain Sutherland claimed that he was unfairly dismissed. The respondent admitted the dismissal, but claimed that the reason was conduct, gross misconduct, and that it was fair. E.T. Z4 (WR)

The evidence

[2]I heard evidence first from the respondent’s sole Director, Robert McAlpine. I then heard evidence from Mr Sutherland.

[3]The claimant submitted a bundle of documentary productions (“C”).

The facts

[4]In his Note, following the case management preliminary hearing on 20 December 2023, Judge d’lnverno recorded the following agreed facts:- “(a) That the claimant’s dates of employment being from 17th 04 2017 to 17 08 2023 are agreed; (b) That the claimant’s average hours worked per week of 37.5 hours, the claimant’s weekly gross pay of £625 and the claimant’s weekly net pay of £498 are agreed; (c) That the claimant was summarily dismissed (dismissed without notice) by the respondent on the 17th 08 2023 for gross misconduct assertedly constituted by the claimant’s use of inappropriate language towards the respondent’s Director in a group chat containing other staff members shortly prior to his dismissal, and that the dismissal falls to be regarded as fair in terms of section 98(4) of the Employment Rights Act 1996; (d) That while for a period prior to his dismissal the claimant had been refusing the respondent’s direction that he carry out measurements of the properties in which he was working as a “Mastic Man (Mastic Operative)”, and that while the respondent asserts and the claimant denies that the making of such measurements was part of the claimant’s contracted for duties, that particular dispute forms only the background to the circumstances and conduct for which the claimant was dismissed.”

[5]Having heard the evidence and considered the documentary productions, I was able to make the following additional findings in fact. By and large, these were either admitted, or not disputed. The respondent is a small local business. It had only three employees at the relevant time: Mr Sutherland; Paul Gray, another “Mastic Man”; and an Administrator, Pamela Rutherford. Robert McAlpine is the sole Director of the respondent Company. He has been in business for some 30 years. He is 65 years of age. Measuring work

[6]The claimant’s employment was uneventful until a few weeks before his summary dismissal on 17 August 2023. For some weeks prior to that, the claimant had refused to carry out measuring work at the properties in which he was working. There may not have been a specific provision in his contract of employment that he would be required to do this work, but he had been doing it for many years, from when he started, without complaint, and it was an important part of his job. This refusal created a problem for Mr McAlpine rendering invoices to his customers. However, I accepted Mr McAlpine’s evidence that the problem was not insurmountable as he could arrange for the claimant’s colleague, Mr Gray, to do the measuring. There were a number of exchanges between Mr Sutherland and Mr McAlpine, by way of a WhatsApp group chat. The parties to the group chat were the respondent’s three employees, namely Mr Sutherland, Mr Gray and Ms Rutherford, along with Mr McAlpine.

[7]On 16 August 2023, Mr Sutherland was in further trenchant correspondence with Mr McAlpine on the group chat about his refusal to do the measuring work. In the course of the correspondence Mr Sutherland said this to Mr McAlpine: “Its not in the contract as part of the job so not doing it anymore as you’re an ungrateful cunt”.

[8]This comment was brought to Mr McAlpine’s attention by Pamela Rutherford.

[9]The following day there was further acrimonious correspondence by way of the group chat, in the course of which Mr Sutherland called Mr McAlpine a “clown” and a “fool” and told him that he, “should do the job himself.

[10]In response, Mr McAlpine advised Mr Sutherland, by way of a WhatsApp message, “not to come back”. Discussion and decision

The issues

[11]At the case management preliminary hearing on 20 December 2023 Judge d’lnvemo identified the issues in the case:- “(a) What was the reason or, if more than one, the principal reason for the respondent’s admitted summary dismissal of the claimant on the 17th of August 2023; and in particular, as is asserted by the respondent,(i) Was the claimant dismissed for the sole reason of his gross misconduct constituted by his inappropriate use of language on an office group chat; and if so did the respondent act reasonably in the circumstances in treating that admitted conduct as a sufficient reason for dismissing the claimant and thus, does the dismissal fall to be regarded as fair in terms of section 98(4) of the ERA Or, alternatively, as is asserted by the claimant;

(ii) Was the reason for the claimant’s dismissal, or if more than one the principal reason for his dismissal, the fact that he had refused, some weeks earlier, to carry out measuring tasks at the buildings upon which he was working in circumstances, as asserted by the claimant but denied by the respondent, where he was not under a contractual obligation to carry out such work and thus entitled to refuse; separately was the claimant’s dismissal procedurally unfair in that he was summarily dismissed but without any prior written or verbal warning and thus, does the dismissal fall to be regarded as substantively, and or procedurally, unfair in terms of section 98(4) of the ERA .....” Dismissal

[12]I was satisfied that when Mr McAlpine told Mr Sutherland “not to come back* that this was a summary dismissal. Thereason

[13]In every unfair dismissal case where dismissal is admitted, s.98(1) of the Employment Rights Act 1996 (“the 1996 Act”) requires the employer to show the reason for the dismissal and that it is an admissible reason in terms of s.98(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. An admissible reason is a reason for which an employee may be fairly dismissed and among them is conduct.

[14]Conduct was the reason for the dismissal. Mr McAlpine gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. I was satisfied that the reason for the dismissal was the offensive comments which Mr Sutherland made to him in the group chat. It was not because Mr Sutherland was refusing to do the measuring work. While this was an irritation and caused administrative difficulties for Mr McAlpine, it was abundantly clear from his consistent evidence that Mr Sutherland’s comments upset and offended him and that was why he dismissed him.

[15]The remaining question which I had to determine, therefore, under s.98(4) of the 1996 Act was whether the respondent had acted reasonably in treating that reason as a sufficient reason and that question had to be determined in accordance with equity and the substantial merits of the case. Was there procedural unfairness?

[16]Procedural fairness is an integral part of the reasonable test under s.98(4). In Polkey v A E Deyton Services Ltd

[1988] ICR 142

, HL Lord Bridge itemised the procedural steps that will be necessary in the great majority of cases if an employer is to be considered to have acted reasonably in dismissing. In the case of misconduct this involves investigating fully and fairly and hearing what the employee has to say in explanation or mitigation. That was not done in this case. I was also mindful that there is provision for “disciplinary action” in the respondent’s Staff Handbook (C4).

[17]Further, the ACAS Code of Practice on disciplinary and grievance procedures under the heading, “Keys to Handling Disciplinary Issues in the Workplace”, provides that a meeting should be held with the employee to discuss the problem.

[18]On the face of it, therefore, Mr Sutherland’s dismissal was procedurally unfair. However, it was stated in Polkey that if an employer could reasonably have concluded that a proper procedure would be, “utterly useless” or “futile”, it might well be acting reasonably in not putting one in place.

[19]This issue was also addressed in Ashby v JJB Sports pic

UKEAT/0114/12

and Wm Morrisons Supermarket pic v Kessab

UKEAT/0034/13/GE

[20]The test is an objective one: the Tribunal must ask whether an employee, acting reasonably, could have made the decision that it would have been futile to follow proper procedures.

[21]I arrived at the view that the particular circumstances in this case were exceptional enough to “excuse” the respondent, and Mr McAlpine, in particular, from following the proper disciplinary procedure.

[22]The reasons for this is that Mr McAlpine is the sole Director of the respondent Company. Mr Sutherland did not deny making these comments to Mr McAlpine. They were on the group chat for all to see. Had Mr McAlpine convened a disciplinary hearing, from a practical point of view he was the only person in the Company who could conduct the hearing and indeed hear any appeal. He had already decided that Mr Sutherland was guilty of gross misconduct which justified his summary dismissal. Further, Mr Sutherland’s attitude was such that he had not apologised or given any indication that he was likely to be conciliatory, in any way. 23. 1then went on to consider whether, in all the circumstances, dismissal was a reasonable sanction. In this regard I was mindful of the guidance given in such well-known cases as Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

that there is a band of reasonableness within which one employer might reasonably dismiss the employee whereas another would quite reasonably keep him on. It depends entirely upon the circumstances of the case whether dismissal is one of the penalties which a reasonable employerwould impose. If no reasonable employer would have dismissed, then dismissal is unfair, but if a reasonable employer might reasonably have dismissed, then dismissal is fair.

[24]I was satisfied that Mr Sutherland was guilty of gross misconduct which justified his summary dismissal. The comments which Mr Sutherland made, specifically directed to his “boss”, Mr McAlpine, the sole Director of the respondent Company, a man in his 60s who has been in business for decades, were grossly offensive. Nor were they communicated in private. The two other employees in the business were aware of them. Had Mr McAlpine allowed Mr Sutherland to remain in his employment there was a risk that his authority had been undermined. Also, and significantly, due to the small size of the business, Mr McAlpine would be in daily contact with Mr Sutherland had he not been dismissed. In light of Mr Sutherland’s admitted misconduct, it was reasonable for Mr McAlpine to take the view he had lost trust and confidence in him to such an extent that it was not feasible to allow him to return to work.

[25]I arrived at the view, therefore, that the dismissal in the particular circumstances of this case fell within the band of reasonable responses which a reasonable employer might have adopted.

[26]I am satisfied, therefore, that the dismissal was procedurally and substantively fair. Accordingly, the claim is dismissed.