IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
SPELLBOUND HOLDINGS LIMITED T/A TRUSTFORD
Reference:  TRE 212
Hearing Date: 24
H G Griffin, Chairman
For the Claimant: In
For the Respondent: Mr
W Smith, Integra Legal Limited
It is the
judgment of the Tribunal that the Claimant’s claim of unfair dismissal fails.
1. By a Claim
Form presented on 7 December 2017, the Claimant brought a complaint of unfair
dismissal against the Respondent ("Claim").
2. By a Response
Form presented on 21 December 2017, the Respondent defended the Claim.
3. There was no
dispute between the parties that the Respondent dismissed the Claimant.
Claim as formulated in the Claim Form
4. The Claimant
a) the sanction of
dismissal was excessive in the circumstances; and
b) the Respondent
failed to properly investigate the incident in that it failed to interview a
senior employee who the Claimant believed was present during the relevant incident.
5. The Claimant
also submitted that the dismissal was unfair because he was the subject of an
existing final written warning which was, in the Claimant’s view, unfairly
Response as formulated in the Response Form
6. The Respondent
accepted that the Claimant was an employee and accepted that the Claimant had
sufficient continuity of employment to present a claim of unfair dismissal.
7. The Respondent
submitted that this was a ‘conduct’ dismissal, which is a
potentially fair reason under the provisions of Article 64(2) of the Employment
(Jersey) Law 2003 (“Employment Law”).
8. The Respondent
submitted that it:
a) undertook a
reasonable investigation and followed a fair disciplinary procedure before
dismissing the Claimant; and
b) acted within
the range of reasonable responses of a reasonable employer in dismissing the
Claimant in all the circumstances.
Management to date
9. This matter
came before Deputy Chairman Advocate Jones for a Case Management Meeting 9
March 2018. The parties were issued with Case Management Orders and the matter
was listed for a hearing on 24 July 2018 (“Hearing”).
Existing Final Written Warning
10. Under the
provisions of Article 2 of the Employment and Discrimination Tribunal
(Procedure) Order 2016, the Tribunal has wide case management powers to ensure
that cases are dealt with expeditiously and that the evidence which the
Tribunal hears is relevant to the issues being considered. Furthermore, in the case of Davies v
Sandwell Metropolitan Borough Council  EWCA Civ 135, the Court of
Appeal stated that a Tribunal should not spend time listening to evidence which
is demonstrably irrelevant to the issues being considered.
11. In view of the
above, I instructed that I would not hear evidence regarding the fairness of
the decision to issue a final written warning in February 2017 (“Final
Written Warning”). The Final
Written Warning remained ‘live’ on the Claimant’s personnel
file at the time of his dismissal.
However, while the existence of the Final Written Warning was relevant
for the purposes of determining the fairness of the Claimant’s dismissal,
it was not appropriate for the Tribunal to carry out an assessment of whether
or not the original decision to issue the Final Written Warning some nine
months previously had been fair.
12. I therefore did
not allow evidence regarding the decision to issue the Final Written Warning
and in considering my decision, I did not assess the fairness of the decision
to issue the Final Written Warning.
13. In advance of
the Hearing, the Tribunal received a witness statement from the Claimant (p23-24]
and the Claimant also gave evidence under oath.
14. On behalf of
the Respondent, the Tribunal also received witness statements and heard
evidence under oath from:
a) David Lanyon,
Sales Manager and dismissing officer [p30-34]; and
Vidamour, Aftersales Manager for Guernsey and appeal officer [p35-37].
15. A witness
statement was also submitted on behalf of RH. However, RH’s evidence dealt
exclusively with the decision to issue the Final Written Warning. As set out above, this evidence was not
relevant to the issues being considered and RH therefore did not attend to give
16. The Respondent
provided the Tribunal with an agreed file of documents (“File”) to
which each party referred during the course of the Hearing. References to page numbering in this
judgment are to the pages in the File.
17. The Respondent
helpfully provided written representations and both parties made their arguments
orally by way of brief submissions.
carefully considered all of the evidence (including witness accounts). However, I summarize here only that
evidence which is relevant to the Issues. Where it is has been necessary to
resolve disputes about what happened I have done so on the balance of
probabilities taking into account my assessment of the credibility of the
witnesses and the consistency of their accounts with the rest of the evidence
including the documentary evidence. In this decision I do not address every
episode covered by that evidence, or set out all of the evidence, even where it
is disputed. Rather, I have set out my principal findings of fact on the evidence
before me that I consider to be necessary in order to fairly determine the
claims and the issues on which the parties have asked me to decide.
Respondent is wholly owned by Ford Motor Company and sells new and used cars,
vans and commercial vehicles.
20. The Respondent
employed in the Claimant as a driver from 26 July 2007 until his dismissal on
17 October 2017 (“Dismissal”).
Final written warning
21. In February
2017, following a disciplinary process (“February Disciplinary”), the
Claimant was found to have committed an act of misconduct, namely:
and aggressive behaviour directed at another colleague;
behaviour (shouting at another colleague in the presence of customers); and
c) failing to
abide by the Respondent's principal of 'respect and care for everyone'.
22. The Respondent
issued the Claimant with the Final Written Warning, which was to remain on his
personnel file for a period of 12 months from February 2017 [p 69-70]. The Respondent notified the Claimant of
his right to appeal, but he did not do so.
The Claimant was aware that the Final Written Warning was to remain on
23. During the
February Disciplinary, the Claimant complained that he had been the subject of bullying
by other members of staff. The Respondent
told the Claimant that, if he believed that he was being bullied, he should
raise this with his line manager.
24. On 10 October
2017, an argument occurred between two of the Respondent’s other members
of staff in the Respondent’s service reception area.
witnessed this argument, a customer (“Customer”) made a comment (“Comment”)
which the Claimant considered to be racist. The Tribunal makes no finding
regarding the nature of the Customer’s comment because it is not
26. The Claimant
left the Service Reception area but then returned a few minutes later to
confront the Customer about what he had said (“Incident”).
Following the Incident, the Customer filed a formal written complaint about the
Claimant [p77-79] (“Complaint”) in which he stated that he "felt intimidated" by the Claimant's
conduct and that the Claimant's "attitude
27. Following the
Incident, the Respondent’s service manager (“Service
Manager”) took witness statements from two employees who were present and
witnessed the Incident [p71-72]. The first witness ("AB”) stated
a) the Claimant
was "immediately riled" by
the Comment and left the service reception
b) the Claimant
returned some minutes later and went "face-to-face"
with the Customer;
c) the Service
Manager removed the Claimant from the Service Reception area because one "could see something was going to happen";
d) the Claimant
was "red in the face with anger".
28. The second
witness ("CD") stated that:
a) the Customer
didn't say anything offensive or racist;
b) the Claimant
came "right up to the face of the
c) the Claimant
had "violence in his face";
d) the Claimant
was “totally out of order",
was "very aggressive" and
"red in the face".
29. On 12 October
2017, the Service Manager wrote to the Claimant to advise him that, following
the investigation, he considered that the matter warranted disciplinary action
[p 80-81]. He notified the Claimant that the allegations against him were:
behaviour towards the Customer, specifically getting up close to a customer's
face and accusing him of being racist;
b) bringing the
Company’s name into disrepute; and
c) failure to
"drive the standard of customer care" in line with Company purpose.
30. The Service
a) notified the
Claimant of the date of the disciplinary hearing (“Disciplinary
b) notified the
Claimant of his right to be accompanied to the Disciplinary Hearing; and
c) reminded the
Claimant that the Final Written Warning was on his file which meant that the
outcome of the Disciplinary Hearing may result in the Claimant’s
31. The Service
Manager also enclosed guidelines for the Claimant and his representative in
order to help them prepare for the disciplinary hearing [p 82-84].
32. On 17 October
2018, the Claimant attended the Disciplinary Hearing and was accompanied by a
colleague. The Disciplinary Hearing
was conducted by Mr Lanyon, Sales Manage and minutes were taken of the meeting
33. At the
Disciplinary Hearing, the Claimant:
a) denied that he
had been either angry or aggressive towards the Customer;
b) stated that the
statements provided by the Customer, AB and CD were not true;
c) stated that
the Customer had been racist towards him; and
d) questioned why
the General Manager had not been called as a witness because the Claimant
believed that he had witnessed the Incident.
34. At the
Hearing, the Claimant reiterated that he had not behaved aggressively towards
35. Mr Lanyon
adjourned the Disciplinary Hearing and, having spoken to the General Manager,
established that he did not witness the Incident.
36. Mr Lanyon
a) the evidence was “very convincing” that the Claimant
behaved in an aggressive manner towards the Customer; and
b) in light of
the Final Written Warning (which was for a similar incident) he could not be
confident that this type of incident would not happen again in the future.
37. Mr Lanyon
therefore dismissed the Claimant with notice and confirmed this decision to the
Claimant by letter dated 24 October 2017 [p 89-90]. Mr Lanyon notified the Claimant of his
right of appeal. At the Hearing, Mr Lanyon gave evidence that this kind of
incident would normally constitute gross misconduct but he was uncertain of the
exact words used by the Customer and therefore gave the Claimant the benefit of
the doubt and a payment in lieu of his notice.
38. On 26 October
2017, the Claimant appealed the decision to dismiss him on the following
a) the Claimant
believed that he had been bullied for the previous 8 years;
b) the Claimant
believed that he had received the Final Written Warning because, having
suffered years of bullying, he reacted once and was disciplined unfairly for
c) the Claimant
believed that CCTV of the Incident should have been viewed;
d) the witness’
accounts were deliberately not accurate because the two employee witnesses feared
that they would lose their jobs if they supported the Claimant; and
e) the Claimant
believed that he was entitled to 26 weeks' pay rather than 10 weeks (this
ground arising from confusion on the Claimant’s part as to notice pay and
compensation for unfair dismissal).
39. A letter
confirming the appeal hearing was sent to the Claimant on 30 October 2017 [p 92-93]
together with additional guidance notes to help the Claimant prepare for the
appeal hearing [p 94-96].
40. An appeal hearing
(“Appeal Hearing”) took place on 8 November 2017 and was conducted
by Mr Vidamour, Aftersales Manager.
The Claimant was accompanied by a former colleague and made extensive
submissions, and minutes were taken [p 97-102].
41. Having heard
the Claimant’s submissions, Mr Vidamour adjourned the Appeal Hearing and
then contacted both the Service Manager and disciplining officer from the February
Disciplinary in order to ask about the extent to which the Claimant had raised
the issue of bullying with them. Mr
Vidamour’s discussions with both individuals were included in the Appeal
42. Mr Vidamour
wrote to the Claimant on 10 November 2017 to confirm the outcome of the Appeal
Hearing [p105-107]. Mr Vidamour rejected each of the Claimant's grounds of
appeal and upheld the original decision to dismiss the Claimant. He concluded that:
a) the Claimant
raised the alleged bullying informally, but the allegation was unspecific and the
disciplining officer instructed the Claimant on how to raise a complaint more
formally. The Claimant did not do
so and did not raise the issue of bullying after the February Disciplinary;
b) the Claimant
did not appeal against the Final Written Warning;
c) CCTV was only
in operation outside and did not cover the area where the Incident had occurred;
d) Mr Vidamour
accepted the evidence of the two witnesses and the Customer over that of the
61 of the Employment Law provides that an employee has the right not to be
unfairly dismissed. Article 64(1) of the Employment Law states that the
employer must show the reason for the dismissal. In order to be a fair reason
for dismissal, the reason must fall within the scope of the five potentially
fair reasons as set out in Article 64.
The Tribunal is required to determine whether the dismissal was fair or
unfair by having regard to the reason for dismissal and assessing whether in all
the circumstances the employer acted reasonably or not in treating that reason
as a sufficient reason for dismissing the employee. The Tribunal is required to
have specific regard to the size and administrative resources of the employer
in reaching its decision and to make that decision in accordance with equity
[fairness] and the substantial merits of the case. The Tribunal must not
substitute its own standards to those of the employer and a dismissal will be
unfair only if the decision to dismiss falls outside the band of
reasonable responses of a reasonable employer.
In cases involving the misconduct of an employee, the Tribunal
must apply the guidelines as set out in the case of British
Home Stores Limited v Burchell  ICR 303 (EAT) (“Burchell
Guidelines”). The Tribunal
has referred to the Burchell Guidelines on many previous occasions. The
Burchell Guidelines state that the Tribunal must consider:
the employer genuinely believed the employee was guilty of the misconduct when
it dismissed him;
so, whether there were reasonable grounds for that belief; and
the employer carried out as much investigation into the matter as was
reasonable in all the circumstances before dismissing the employee.
45. Although the
Claimant spoke at length at the Hearing about the alleged bullying, I concluded
that this evidence was not relevant to the issues being considered by the
Tribunal. I accepted that the last occasion on which the Claimant raised the
bullying issue was during the February Disciplinary. The evidence showed that the Claimant
was aware that if he was being bullied he needed to raise this formally with
his line manager; he did not do this.
The Claimant's allegation of bullying related only to his view that the
decision to issue the Final Written Warning was unfair. For the same reasons as
set out in paragraphs 10-12 above, I therefore discounted the Claimant’s
evidence relating to bullying as being irrelevant.
46. The Claimant
submitted that the General Manager witnessed the Incident and that he should
have been interviewed as a witness. However I accepted the evidence of both Mr
Lanyon and Mr Vidamour who both gave evidence that they spoke to the General Manager
and that he confirmed to them that he did not witness the Incident. Furthermore,
the General Manager was not identified as being present during the Incident by
either of the employee witnesses or by the Customer in their statements. I
therefore rejected the Claimant's submission that the failure to call the
General Manager as a witness affected the fairness of the investigation or the
fairness of the Claimant’s dismissal.
considered all of the evidence, I was satisfied that the Respondent undertook a
reasonable investigation and that the disciplinary and appeal processes were
both thorough and afforded the Claimant the opportunity to defend himself and explain
his position. I concluded that the
Respondent, having conducted a fair and reasonable examination of the facts, came
to the genuine conclusion that the Claimant was guilty of misconduct. Furthermore, in light of the Final
Written Warning and the fact that it was issued by the Respondent for similar
misconduct by the Claimant, I concluded that the decision to dismiss the
Claimant fell within the band of reasonable responses of a reasonable employer.
48. The Claimant's
claim of unfair dismissal is therefore rejected.
Mrs H G Griffin, Chairman