IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
John Lewis PLC
Hearing Date: 16th,
22nd and 23rd May 2018
C R Davies, Deputy Chairman
E Harper, Mr C Holloway
For the Claimant: In
For the Respondent: Mr
Huw Thomas, Carey Olsen
At the conclusion of this final hearing the Tribunal
found as follows:
- The Claimant was not unfairly dismissed;
- The Claimant is entitled to the sum of £3,014.34
in respect of contractual claims;
The reasons for this decision are now set out below.
- The Claimant had been employed by the
Respondent since 2013. At the
relevant time he was a night shift manager. In the summer of 2016 the
Claimant became unwell and he then took significant periods of sick leave,
returning to work for only brief periods. Between 1 July 2016 and 30 June
2017 the Claimant was only able to attend work for 45 days. The Claimant raised a number of grievances
in 2016 and 2017. There was a
dispute as to whether these grievances were properly handled. The employer did follow a grievance
procedure and although the outcome did include some mild criticism of the
management team none of the grievances were upheld. The employer implemented
its capability procedure and dismissed the Claimant on the grounds of his capability
on 6th July 2017. The Claimant did not appeal.
- The Claimant applied for compensation for unfair
dismissal and brought various contractual claims for unpaid wages,
deductions, bonuses and holiday pay. The total of the contractual claims
was £11,164. He felt
that he had been very badly treated by the employer and by his work
colleagues and, essentially, that there had been a campaign against him
which had eventually led to his dismissal.
- There was no criticism of the Claimant’s
performance at work, or his dedication. Mr Donciu is an intelligent and
deep-thinking young man who took his responsibility to his colleagues very
- The Respondent’s position was that the
Claimant had been fairly dismissed for a fair reason, having decided not
to engage with a fair capability procedure. The employer did however agree that
the Claimant had been underpaid and at the commencement of the hearing
valued his combined contractual claims at a total of £2,755.62. This was adjusted during the
hearing to £3,014.34.
- We were provided with a number of bundles of
documents. We heard evidence on oath from the
Claimant and from a number of witnesses for the employer: Mr Damian Warman,
Mr William Knight, Mr Christopher Bysouth and Mrs Louisa Berger. The witnesses all provided us with
witness statements, which stood as part of their evidence. We felt that all of the witnesses
in this case did their best to recall factual events truthfully, albeit
that they saw the case very differently.
- The Claimant issued this employment claim in 2017. He also attempted to bring a
discrimination claim, but this was struck out at an early stage because it
was brought out of time.
- We would summarise the Claimant’s case
and the relevant parts of his evidence as follows:
- Mr Donciu felt that he had been targeted for dismissal
because a manager, Mr Warman, had formed a personal dislike of him and
other members of his family.
Mr Donciu’s brothers had been employed by John Lewis PLC in
Jersey and had been dismissed by Mr Warman. One brother, N, had been
re-employed in England by John Lewis PLC and was doing very well (this
was accepted by the Respondent). It was put to the Claimant in cross
examination that Mr Warman had deliberately not stood in the way of the decision to
offer N a new job and that he was glad he was now doing well.
- Mr Donciu believed that Mr Warman had
influenced the decision to dismiss him. This was disputed by Mr Warman
- Mr Donciu felt that Mr Warman had behaved
badly towards him and other employees from at least 2016 onwards. He stated
that Mr Warman had tried to sack him in 2014 and accused him of being
psychologically abusive to him and to other members of staff. This was
denied by Mr Warman.
- Mr Donciu’s grievances were not just about
him, he had raised grievances about complaints that had been made to him
by other members of staff. It was put to him in cross examination that
the staff concerned had not supported those grievances. The Claimant felt
that other staff should have been spoken to.
- Mr Donciu felt that some of his colleagues had
treated him badly, that his grievances had been ignored and that his colleagues
had been rewarded for their poor behaviour towards him. He felt that his
employer, and his colleagues, had made him ill and that his workplace was
unsafe. Mr Donciu and one of
his colleagues had both been briefly suspended in 2016 and he felt that
the suspension had been handled badly.
- Mr Donciu had not resigned when he was paid
incorrectly because he wanted to work for John Lewis and believed in the
principles of the business.
- Mr Donciu was aggrieved by the failure to pay
his wages correctly and, understandably, he no longer trusted the
employer’s figures. The
failure to pay him correctly had caused him difficulty.
- Mr Donciu accepted that he had not
participated in the capability process and had not agreed to the
disclosure of medical information to his managers. He felt that this was justified because
he did not trust the employer.
Despite his decision not to engage, he felt that he should have
been offered an adjustment to his working arrangements or a transfer to
another store. He had applied for a job in another store but had been
- A number of witnesses gave evidence on behalf
of the employer and we summarise the relevant parts of their evidence as
- Mr Warman is a branch manager and
director. It is part of his
role to oversee sickness absence in the two branches that he manages. He felt that he had a good
relationship with the Claimant who had brought a number of complaints to
him. He felt he had done his
best to support him. However,
Mr Donciu had then raised a grievance against him personally which came
as a shock and upset him greatly. We were directed to emails
from Mr Warman to other senior staff which reflected that upset. The
grievance was investigated and was not upheld. Mr Warman told us that he had
nothing to do with the decision to dismiss Mr Donciu and denied that he
bore any personal ill will towards the Claimant or his family.
- Mr Knight was the Claimant’s line
manager. During the
Claimant’s periods of sick leave he had tried to contact him
regularly. In 2016 the
Claimant and one of his colleagues had been suspended briefly and it was
Mr Knight that had investigated the matter and lifted the suspensions. In
early 2017 he had offered Mr Donciu a management referral for a medical
assessment by occupational health which he declined. Mr Knight had tried to
help sort out the payroll issues affecting the Claimant. The Claimant returned to work
briefly but then became unwell again. By April 2017 Mr Knight was unable
to contact him. The Claimant
returned to work briefly, and was then again unwell from June 2017. Mr
Knight felt that he had done everything he could to support the Claimant;
- Mr Bysouth is a deputy branch manager. As part of his role, he reviews
absence levels and assists with the fitness to work process. He was notified by Mr Knight that Mr
Donciu was not engaging with the sickness absence procedure and had twice
declined a management referral.
Without this cooperation, it was difficult to manage Mr
Donciu’s absence. He
wrote to the Claimant formally in February 2017 asking him to consent to
a further process, a fitness to work checklist. This process calls for a medical
report which is then shared with the manager and which can be used to
consider adjustments to the workplace. The claimant agreed to this
process but he would not consent to share any information arising from
it. The medical information
could not be disclosed without his permission. The claimant had asked for a
phased return to work, but was unwilling to share any medical information
to support the request. In
June 2017 Mr Bysouth invited Mr Donciu to a meeting to discuss his
sickness and capability which could have included a discussion about adjustments
to his working arrangements. Mr Donciu was warned that the process could
lead to the termination of employment. The Claimant did not attend the
meeting and did not respond to the invitation. A second meeting was
arranged and the Claimant was again given a warning as to the possible
outcome. He did not attend
this meeting. Mr Bysouth sat
alone, considered all of the information that he had as best he could and
decided to terminate the employment on capability grounds. He would rather have dealt with
the situation in another way but felt he had no choice. Mr Bysouth informed the Claimant
of his dismissal and his right to appeal. No appeal was lodged. Mr Bysouth
was clear that Mr Warman had no input into the decision to dismiss Mr
Donciu and was not consulted.
We were referred to a number of documents but none of them seemed
to us to contradict that evidence.
- Mrs Berger gave us evidence on the calculation
of the contractual sums due to the Claimant. There had been errors in
calculations made by a member of her staff and she had corrected them.
Mrs Berger took us through the various calculations which corrected month
by month the amounts paid to the Claimant. The adjustments are numerous and complex
so we will not set them out here.
The Claimant was underpaid because there had been an error in
calculating his sick pay entitlement. A further small adjustment was made
to the figures during Mrs Berger’s evidence and her conclusion was
that £3,014.34 was due to the Claimant.
It is a great shame that
these errors were not corrected more quickly but we found Mrs Berger’s
evidence helpful and she was kind to offer an apology on behalf of the payroll
department to Mr Donciu for the problems caused to him by the underpayments. Mr Donciu accepted that apology with
grace. He did not point to any inaccuracies in the revised figures but,
unsurprisingly, he did not feel confident enough to agree them.
- The Tribunal found the following facts:
- We find that there were clearly problems in Mr
Donciu’s team at work which caused him (and no doubt others)
distress. Mr Donciu became
unwell. This led him to take
a great deal of time off work due to sickness. The mistakes made with Mr
Donciu’s pay must have added to the stress that he was
experiencing. However, Mr
Donciu did not resign, he decided to carry on in employment.
- Mr Donciu was dismissed. We found no credible
evidence which would support Mr Donciu’s suspicion that his
dismissal was engineered as a result of personal animosity on the part of
Mr Warman, or any other manager.
We find that Mr Warman was not involved in the decision to dismiss
- We find that the reason for the dismissal was
Mr Donciu’s capability in light of his significant absences from
work due to sickness, and that the dismissal was the final outcome of a
capability process that Mr Donciu had chosen not to engage with. If he
had chosen to engage, the outcome might have been different.
- We find that Mr Knight and Mr Bysouth did their
best to engage with Mr Donciu and to offer him support with the
- We find that Mr Donciu decided not to appeal
- We found that the correct total sum due in
respect of the contractual claims is £3,014.34.
Dismissal - The Law
- All employees are entitled to protection from unfair
dismissal as a result of Article 61 of the Employment (Jersey) Law 2003
(the Law). Article 64 of the
Law sets out the test for unfair dismissal.
- The employer in an unfair dismissal case has to show
that there was a fair reason for the dismissal. In this case, the employer said
that the reason for the dismissal was the employee’s capability and
we have found that to be the case. Capability means the employee’s
capability assessed by reference to their health, amongst other possible
qualities. That was a potentially fair reason for dismissal (Article 64(2)
(b) of the Law). We then have
to consider whether the dismissal was fair or unfair. We have considered all the
circumstances, including the size of the employer and we have considered
the principles of equity and the substantive merits of the case.
considered whether dismissal fell within the band of reasonable responses
open to the employer. The
employer drew our attention to the English case of East Lindsey
District Council v Daubney 1977 ICR 566 (cited in Jersey in the case
of Veloso v Jersey Milk Marketing Board (2003) JET). Having considered the principles
set out in that case, we find that reasonable and sensible steps were
taken to consult with the employee and to find out the true medical
position before a decision was made to dismiss him.
- We have concluded that it was not reasonable to expect
the employer to hold the Claimant’s job open any longer.
- We have to find that the decision to dismiss was within
the range of reasonable options open to the employer in relation to the
We have found that this was not a case of unfair
dismissal. We have found that the
reason for the dismissal was the Claimant’s capability, a potentially
fair reason. We have considered the
law. We have found that the
dismissal was not procedurally or substantively unfair in all the circumstances
of the case. We did express dismay
at the conclusion of the hearing that such a large employer, which prides
itself on its standards as an employer, would made such significant payroll
errors over such a long period without taking the time to correct those
mistakes when queries were raised.
Not all employees will be as determined as Mr Donciu has been and we
hope that steps are taken to make sure that, in so far as is possible, this
does not happen again. We think it
would be appropriate for Mr Donciu to receive a full apology from the employer
for the payroll errors and we were surprised that no financial recompense for
the errors, even in the way of interest on the unpaid amounts, had been offered
to him as at the date of the hearing.
- The complaint of unfair dismissal is dismissed;
- An award of £3,014.34 is made in relation
to the contractual claims;
The total due to the Claimant, subject to any deductions required by law
for tax or social security, is £3,014.34.
C R Davies, Deputy Chairman Date:
29 June 2018