IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

JONATHAN BLOOD

CLAIMANT

 

AND

 

 

MARK PEEL INVESTMENTS LIMITED

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2018] TRE 048

 

Hearing Date:                23 August 2018

 

 

Before:                                     Mrs H G Griffin, Chairman

 

Appearance:

For the Claimant:           In person

For the Respondent:     Mrs E Peel

 

 

THE JUDGMENT

 

The Respondent unfairly dismissed and wrongfully dismissed the Claimant.

 

The Claimant’s compensation for unfair dismissal is reduced by 30%.

 

 

THE DECISION

 

Background

 

1.       By a Claim Form presented on 4 April 2018, the Claimant brought complaints of unfair dismissal and wrongful dismissal against the Respondent ("Claims").

 

2.       By a Response Form presented on 26 April 2018, the Respondent defended the Claims.

 

3.       There was no dispute between the parties that the Respondent dismissed the Claimant.  However, the Claimant disputed the Respondent’s alleged reason for dismissal.

 

The Claim as formulated in the Claim Form

 

Unfair dismissal

4.       The Claimant asserted that the dismissal was procedurally unfair as the Respondent failed to undertake any investigation or engage in any procedure prior to the Claimant’s dismissal.

 

5.       The Claimant also denied all of the Respondent’s allegations regarding his alleged misconduct.

 

Wrongful dismissal

6.       The Claimant asserted that the Respondent dismissed him in breach of contract by failing to give notice to terminate his employment.  The Claimant asserted that the Respondent was not entitled to dismiss the Claimant without notice.

 

The Response as formulated in the Response Form

 

7.       The Respondent accepted that the Claimant was an employee and that the Claimant had sufficient continuity of employment to present a claim of unfair dismissal.

 

8.       The Respondent asserted 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”).

 

9.       The Respondent asserted that it had dismissed the Claimant for falsifying his timesheets.

 

10.   The Respondent asserted that:

 

a)       it undertook a reasonable investigation and followed a fair disciplinary procedure; and

b)      it acted within the range of reasonable responses of a reasonable employer in dismissing the Claimant in all the circumstances.

 

Case Management to date

 

11.   This matter came before Deputy Chairman Jones for a Case Management Meeting 5 June 2018. The parties were issued with Case Management Orders and the matter was listed for a hearing, which took place on 23 August 2018 (“Hearing”).

 

 

 

Documents and evidence

 

Witness evidence

 

12.   In advance of the Hearing, the Tribunal received a witness statement from the Claimant [tab 4] and the Claimant also gave evidence under oath.

 

13.   On behalf of the Respondent, the Tribunal received witness statements [tab 4] and heard evidence under oath from:

 

a)       Mr Mark Peel, Director; and

b)      Mr Brandon Killey, Manager.

 

14.   In addition, Mrs Elaine Peel, Director, gave evidence under oath.  Mrs Peel did not provide a witness statement in advance of the Hearing because of a mis-understanding.  However it was clear to me that Mrs Peel’s evidence was key to the Respondent’s case. I was satisfied that the Claimant would not be prejudiced by the lack of formal witness statement because the Hearing File contained numerous notes, statements and comments by Mrs Peel [tab 8].  In any event, the Claimant consented to Mrs Peel giving evidence under oath.

 

15.   The Respondent also submitted a witness statement from a former co-worker of the Claimant (“AB”).  AB did not attend the Hearing and was not cross-examined on his evidence.  I therefore attached little weight to his witness statement.

 

Hearing File

 

16.   The parties each provided a file of documents to which they referred during the course of the Hearing.  However, the Respondent failed to deliver its file to the Tribunal in advance of the Hearing.  I therefore only received the Respondent’s papers part-way through the Hearing.  Most of the documents in the Respondent’s file were duplicated in the Claimant’s file and the Respondent drew my attention to documents which I had not previously seen.

 

Submissions

 

17.   Both parties made their arguments orally by way of brief submissions.

 

The Issues

 

18.   At the start of the Hearing, I identified the relevant issues for the parties (“Issues”). The Issues were:

a)       What was the reason for the Claimant's dismissal? The Respondent asserted that it dismissed the Claimant for mis-recording his time, although the Respondent also submitted significant evidence regarding alleged time-keeping issues.  The Claimant asserted that the real reason for his dismissal was his two-week absence arising from his dog's ill-health.

b)      Did the Respondent hold a genuine belief in the Claimant's alleged misconduct on reasonable grounds, having followed as reasonable an investigation as was warranted in the circumstances?

c)       If so, was the decision to dismiss a fair sanction, ie. was it within the reasonable range of responses open to a reasonable employer when faced with these facts?

d)      If the Respondent did not use a fair procedure, would the Claimant have been fairly dismissed in any event had such a procedure been followed?

e)      If the dismissal was unfair, did the Claimant cause or contribute to the dismissal by culpable or blameworthy conduct? This requires the Respondent to prove, on the balance of probabilities, that the Claimant actually committed the misconduct alleged.

f)         If the Claimant did cause or contribute to his dismissal, is it just and equitable to reduce any award and, if so in what amount?

 

The Law

 

19.   Article 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 the real reason for the dismissal and will not automatically accept the reason provided by an employer.  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.

20.   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 [1980] 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:

a)       whether the employer genuinely believed the employee was guilty of the misconduct when it dismissed him;

b)      if so, whether there were reasonable grounds for that belief; and

c)       whether the employer carried out as much investigation into the matter as was reasonable in all the circumstances before dismissing the employee.

Material Facts

21.   I carefully considered all of the evidence (including witness accounts).  However, I summarise 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.

22.   The Respondent is a cafe and takeaway delivery business. It employed the Claimant as a delivery driver from 20 May 2013 until 9 February 2018 when the Claimant was summarily dismissed without notice (“Dismissal”).

 

23.   The Claimant worked nine hours per week spread over Tuesdays, Wednesdays and Fridays. According to his contract of employment, the Claimant’s working hours were variable.  However, the evidence showed that he was required to arrive at work at 6pm, which was when deliveries started.

 

24.   The Claimant’s time-keeping at the beginning of his shift was sometimes poor (“Time-Keeping Issue”).  For a long time, the Respondent dealt with the Time-Keeping Issue informally.  However, on 1 and 6 December 2017, Mrs Peel issued verbal warnings to the Claimant for arriving late to work.

 

25.   Mrs Peel suspected that the Claimant was mis-recording his time. She noticed this when preparing the Claimant's pay for December; on 1 and 6 December 2017 (when she had issued the Claimant with verbal warnings for lateness) the Claimant had recorded start times of 6pm on his timesheet. Mrs Peel did not raise the issue with the Claimant and paid his wages as normal. She did not mention her concerns to Mr Killey or to the Claimant, but decided to quietly investigate, anticipating that the mis-recording would happen again. However, Mrs Peel did not herself witness any further mis-recording of time by the Claimant.

 

26.   In January 2018, Mrs Peel received a series of text messages from AB (another employee) [tab 8] in which AB alleged that the Claimant was arriving late for work and then mis-recording his start time. Mrs Peel raised the matter with Mr Killey (Manager) who advised her that the Claimant's lateness and mis-recording of time had been going on for a prolonged period. Mr Killey’s evidence in this regard was that he should have done something about it sooner but the Claimant was a good worker and was well liked.

 

27.   On 30 January 2018, the Claimant's family dog became very ill. The vet prescribed eye drops to be administered to the dog every 2 hours.

 

28.   As a result of having to administer the eye drops, the Claimant texted both Mrs Peel and Mr Killey to tell them that he would not be able to work his shift.  The Claimant then missed all of his shifts over the next two weeks because of the need to administer eye drops to his dog. On each occasion when he was due to work, the Claimant contacted either Mrs Peel or Mr Killey by text message to notify them that he would not be working his shift.

 

29.   On 9 February 2018, the vet instructed that the dog’s eye treatment could be discontinued.  The Claimant telephoned the Respondent and the call was answered by Mr Peel [statements at tabs 4 and 8].  This was the first time that the Claimant had telephoned the Respondent since his dog fell ill; all other communications had been by text message.

 

30.   From the evidence (and in particular the fact that the Claimant usually texted when he did not intend to work his shift) I did not accept Mr Peel's evidence that the Claimant telephoned to inform him that he would not be coming to work. Mr Peel informed the Claimant that he was being dismissed because "it wasn't working out". The discussion then became heated and resulted in Mr Peel putting down the phone on the Claimant.

 

31.   A short time later, Mrs Peel sent a text message to the Claimant as follows:

Hi Jonny I believe it is not working out for you and us at the moment. Of course we fully understand bringing up a family etc is bloody hard. But lately I have had complaints from customers etc regarding delivery times. You know I am not the kind of person to just let someone go but I have two this time. I have jiggled things around hell of a lot lately to the point it affects everything. I was waiting to your reply yesterday and never received one as I am on edge if you are coming in all the time. Competition is rife, sales are down and the last thing the business needs is for it to decline furthermore. It reflects on everyone working at the Dicq. I am away tonight for a week and to be honest I could not gamble you coming in or not so I have someone doing your shifts. No bad feelings on either side Jonny and I reckon I have been completely fair with you with all the chats we have had. Sorry Jonny.”

 

32.   The Claimant responded in a lengthy text in which he stated that he did not believe that he had been dismissed for lateness or complaints (as stated in Mrs Peel’s text message) but because he took time off to look after his dog.

 

33.   On 29 March 2018, Social Security spoke to Mrs Peel in order to establish the reason for the termination of the Claimant's employment. In a subsequent and letter from Social Security to the Claimant, it confirmed that the Claimant's employment was terminated "due to time keeping and absence without reasonable cause".

 

Claimant’s evidence

 

34.   The Claimant asserted that his dismissal was unfair because the Respondent failed to conduct any investigation or any disciplinary or dismissal process. The Claimant gave evidence that the first he heard that he was being accused of mis-recording his time was when he received the Response Form in these proceedings.

 

35.   The Claimant gave evidence that he took his start times of his own watch and that there was a discrepancy of several minutes between his watch and the clocks used by other members of staff. The Claimant considered that this explained why the Respondent might think he was late although he acknowledged that on occasions he struggled to park due to other vehicles on the slipway.

 

Respondent’s evidence

36.   Mrs Peel gave evidence that she did not feel comfortable telling the Claimant that he was being dismissed for mis-recording his time. She said that it was for this reason that her text message to the Claimant (following the Dismissal over the telephone by Mr Peel) did not make any reference to the mis-recording of time. Mrs Peel said that she wanted to tell the Claimant this face-to-face but that he did not return her calls after the Dismissal.

 

37.   Mrs Peel also stated that when she spoke to the Social Security Department, the Income Support worker did not allow her to finish her explanation as to the real reason for the Dismissal.

 

38.   The Respondent asserted that the Claimant had consistently, over a period of years, mis-recorded his time. Mr Killey gave evidence that "everyone knew" that the Claimant was arriving late but writing down his 6pm start time.  However, although Mr Killey would deliberately call out the Claimant’s arrival time when he was late (so that the Claimant would write the correct start time down on the timesheet) Mr Killey never raised the issue formally with the Claimant.  He explained that this was because everyone liked the Claimant and he was a hard worker.

 

39.   Both Mr and Mrs Peel confirmed that they believed that they had undertaken a sufficient investigation and that the dismissal procedure was fair in the circumstances. According to Mr and Mrs Peel, the decision to dismiss the Claimant was taken before the Claimant was absent due to his dog's illness.

 

Conclusion

Unfair dismissal

40.   I first considered whether the reason for the Claimant’s dismissal was for mis-recording of time (as asserted by the Respondent) or for some other reason, including time-keeping or absence due to the dog’s illness (as asserted by the Claimant).

 

41.   I carefully considered the evidence, including Mr Killey’s evidence regarding the alleged mis-recording of time.  I considered Mr Killey to be a truthful witness.  However, although the question of mis-recording of time and lateness may have been an issue, the overwhelming body of evidence supports a finding that the Claimant was dismissed because of his unreliability over the previous two-week period while his dog was ill.  

 

42.   Having established that the Claimant was dismissed for his unreliability, I considered the fairness of the dismissal.  I noted in particular that the Respondent made no effort to conduct a disciplinary process and that the Claimant was dismissed over the telephone. 

 

43.   I also noted that, given the Claimant’s relatively long service, a reasonable employer would have provided the Claimant with an opportunity to defend himself at a properly constituted disciplinary hearing.  There was no such hearing and the Claimant was afforded no opportunity to explain himself.

 

44.   In view of the above, I concluded that the Claimant was unfairly dismissed.

 

45.   In accordance with the provisions of Article 77F of the Employment Law, the Claimant is entitled to compensation for unfair dismissal as follows:

 

21 x 90 = £1,890

 

46.   In accordance with the provisions of Article 77F of the Employment Law, I then considered whether, in the circumstances of the case, I should exercise my discretion and apply a reduction to the Claimant’s compensation on just and equitable grounds.  I considered whether:

 

a)       the Claimant would have been fairly dismissed had the Respondent followed a fair procedure; and

b)      the Claimant caused or contributed to his dismissal by culpable or blameworthy conduct.

 

47.   Based on the evidence, I did not believe that the Claimant would have been fairly dismissed had a proper procedure been followed. The Claimant was a long-serving employee who had only received verbal warnings to date. However, the Claimant's persistent absence over the preceding two week period in order to care for his dog caused real inconvenience to the Respondent. Whilst I have no doubt that the Claimant cared deeply for his dog, an employer cannot be expected to accept such absence unquestioningly over a prolonged period. After the diagnosis and missing work on the first evening, the Claimant could (and should) have made alternative arrangements to care for the dog during his evening shifts. In taking two weeks off work to care for his dog, the Claimant showed an unjustified disregard for the impact his behaviour was having on his employer and his colleagues.

 

48.   In view of the above, I considered that it was appropriate to exercise my discretion under Article 77F(10) to reduce the Claimant's compensation by 30%.

 

30% of £1,890 = £567

 

49.   The Respondent shall pay to the Claimant the sum of £1,323 by way of compensation for unfair dismissal.

 

Wrongful dismissal

50.   In considering the Claimant's claim for wrongful dismissal (unpaid notice) I was required to assess whether the Respondent was entitled to dismiss the Claimant without notice in all the circumstances. The evidence did not support the Respondent’s submission that the conduct was so serious as to warrant summary dismissal without notice.

 

51.   I therefore concluded that the Claimant was wrongfully dismissed and is entitled to receive damages for breach of contract for failure to give notice to terminate his employment.

 

4 x 90 = £360

 

52.   The Respondent shall pay to the Claimant the sum of £360 by way of damages for breach of contract.

 

Compensation for unfair dismissal

£1,890

Less 30% reduction

(£567)

 

                                                                £1,323

Damages for breach of contract (unpaid notice)

                                                                   £360

TOTAL PAYABLE BY THE RESPONDENT

£1,683

 

 

Mrs H G Griffin, Chairman                                                    Date:           4 September 2018

 

 

…………………………………………………         


Page Last Updated: 04 Sep 2018