Unfair Dismissal Case: Claimant vs. Respondent, Lecture notes of Business

Download Unfair Dismissal Case: Claimant vs. Respondent and more Lecture notes Business in PDF only on Docsity! Case Number: 2302386/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Sirin Respondent: Pizza Express Restaurants Limited Heard at: London South Tribunals On: 01 July 2018 Before: Employment Judge Freer Representation Claimant: Mr B Greenhalgh, Citizens Advice Respondent: Mr P Bownes, Solicitor RESERVED JUDGMENT It is the judgment of the Tribunal that the Claimant’s claims of unfair dismissal and wrongful dismissal are unsuccessful. REASONS 1. By a claim presented to the employment tribunals on 25 June 2018 the Claimant claimed unfair dismissal, wrongful dismissal and other payments. 2. The Respondent resists the claims. 3. The Claimant gave evidence on his own behalf. 4. The Respondent gave evidence through Ms Kate Dawson, Operations Manager and Mr Christopher Coxhead, Head of Brand Format Operations. 5. The Tribunal was presented with a bundle of documents comprising 141 pages and additional documents during the course of the hearing as agreed by the Tribunal. Case Number: 2302386/2018 2 The Issues 6. The list of issues was agreed between the parties at the outset of the hearing. 7. The Claimant confirmed that he was not pursuing any claim for ‘other payments’. The claims are of unfair dismissal and wrongful dismissal only. 8. It was agreed that in the first instance the Tribunal will address liability and general unfair dismissal remedy issues where appropriate. 9. Therefore the issues to be determined by the Tribunal in the unfair dismissal claim are:  Whether the Respondent genuinely believed the Claimant’s conduct;  If so, whether the dismissal was fair in all the circumstances having particular regard to whether the Respondent adopted a fair procedure, whether there were reasonable grounds for dismissal and whether dismissal was a fair sanction;  If the dismissal was unfair, the Tribunal will consider general remedy issues of:  Whether, had the Respondent adopted a fair procedure, the Claimant would have been fairly dismissed in any event, or the Claimant would have been dismissed fairly at a later date (the Polkey principle);  Whether any conduct by the Claimant contributed to the dismissal;  Whether there had been any non-compliance by either party with the ACAS Code on Disciplinary and Grievance Procedures. 10. With regard to the wrongful dismissal claim the Tribunal will consider whether the Claimant committed a repudiatory breach of contract entitling the Respondent to dismiss without notice. If not, to assess the amount of notice pay owed. A brief statement of the relevant law Unfair dismissal 11. The legal provisions relating to unfair dismissal are contained in Part X of the Employment Rights Act 1996. 12. Section 98 provides that, where dismissal is not controversial, the Respondent must show that the reason for dismissal is one of a number of permissible reasons. The Respondent in this case contends that the reason for dismissal is related to the Claimant’s conduct. 13. The Employment Tribunal will consider whether or not the dismissal was fair in all the circumstances in accordance with the provisions in section 98(4): Case Number: 2302386/2018 5 expectation of food delivered within a timely manner. No formal disciplinary matters arose from that circumstance. 27. By a letter dated 10 August 2017 the Claimant wrote to Ms Dawson seeking her help in resolving an issue the Claimant had with the calculation of his holiday entitlement for the leave year 2016/2017. That letter was accepted as a letter of grievance by the Claimant. 28. The Claimant had a meeting with Ms Victoria Johnston, Manager at the Respondent’s Charlotte Street restaurant regarding the matter and the Claimant provided to her details of how he had calculated his entitlement to annual leave pay. 29. Ms Johnson wrote to the Claimant by a letter dated 14 October 2017 confirming that the Claimant’s grievance was not upheld and set out the reasons in detail for that conclusion. The Claimant was given a right of appeal. No appeal was pursued. 30. By letter dated 8 January 2018, the Claimant was requested to attend at an investigation meeting on 10 January 2018: “To provide an explanation for the following matters of concern:  The ability to open kitchen on time  Dough prep incomplete by 11:30am (following brand standards)  Daily veg prep  Speed of service  Tuesday 19th, Thursday 21st and Friday 22nd morning each shift needing management or 2nd chef to help finish prep as kitchen not ready for service  Negative behaviour towards all management  Negative behaviour towards trainee in kitchen during shift on Friday 22nd evening  In subordinate and not willing to compromise when given the option to go home due to poor business and then refusing to support as 2ndchef when another chef was sent home instead. Friday 22nd in the evening at 6 pm  Raised voice on restaurant floor during service aimed at the restaurant manager Friday 22nd  Continually issues over the last 9 months and showing no improvement on attitude or work ability”. 31. The Claimant was provided with copies of the disciplinary policy, shift statements, and manager’s observation. The Claimant was informed that the hearing may result in disciplinary action and was given the right to be accompanied. 32. There was a meeting on 10 January 2018, but it was undertaken by the Manager allegedly involved in the Claimant’s circumstances. Therefore the meeting was rearranged. 33. The Claimant attended at an investigation meeting on 22 January 2018 with Mr Alistair Prior as Investigating Officer, who was the Manager at the Respondent’s Case Number: 2302386/2018 6 restaurant at Horsham. Ms Johnston was notetaker. The Claimant accepted in evidence that Mr Prior was a suitably independent person to the events. 34. By a letter dated 26 January 2018 the Claimant was invited to a disciplinary hearing on 31 January with Ms Dawson. The letter states: “The purpose of the hearing is to discuss allegations of:  Aggressive behaviour and unprofessional conduct towards a fellow employee in that you pushed Reese Ambrose on 8 December 2017  Insubordination and serious failure to follow reasonably legitimate management instructions in that you:  Raised your voice towards Sophie Beeson on the restaurant floor on Friday 22nd of December  Refused to support a trainee chef that in closing duties on Friday 22nd December  Refused to sign the Risk Assessment for Festive and Event Decorations  Refused to swap Boxing Day shift with consideration to unknown business level resulting in a complaint regarding slow service and quality of food and lost business” 35. The Claimant was provided with: the disciplinary policy and procedure; a copy of an unsigned risk assessment; a statement by Sophie Beeson regarding 6 December 2017 and 22 December 2017; a statement by Reese Ambrose dated 11 December 2017; a statement by Kirsty Kimber dated 11 December 2017; a statement from Matt Taylor dated 26 December 2017; investigation notes (typed and handwritten) from the investigation on 22 January 2018; investigation notes and capability invite letter from a previous manager of the Uckfield restaurant. 36. The Claimant was informed that the hearing may result in disciplinary action including dismissal and the Claimant was given a right to be accompanied. 37. That meeting did not go ahead due to Ms Dawson going on annual leave. It was rearranged, by a letter dated 29 January 2018, for 05 February 2018 before Mr James Ince, Operations Manager. 38. The Claimant was unable to attend the disciplinary heating on 8 February 2018 and Mr Ince wrote the Claimant by a letter dated 08 February 2018 which stated: “I write further to your disciplinary meeting on Monday 5th February 2018 at 2pm in Pizza Express Horsham. As you were unable to attend the meeting and as discussed on the telephone I confirmed with you I would take into account a written statement from yourself which is subsequently email to me that evening. In your statement you raised a number of concerns with the original investigation process and as such I feel it is necessary to undertake further investigations before I am able to write to you with a conclusion”. 39. That investigation was passed to Ms Johnston and she emailed the Claimant on 15 February 2018 stating: “As you know you were due to be at a disciplinary hearing last Monday, however due to transport issues you were unable to attend. James Ince received your statement and as a result of the points that you raised he believes that further investigation into these points is required. James is Case Number: 2302386/2018 7 currently on holiday and has asked me to carry this out in his absence. You are not required to do anything I just wanted to let you know no outcome as yet been decided due to additional investigation. When it has been completed James will be in touch with his outcome”. 40. During this period a quality and safety audit was carried out at the Uckfield Branch on 6 February 2018 by Ms Gosia Gocek, Quality and Safety Advisor. The Respondent considered that serious health and safety issues were highlighted within the audit and a full investigation was carried out with the team members on shift, which included the Claimant. For example, three safety alerts were issued with regard to food safety which received a final audit score of 67% 41. The Claimant attended at a meeting on 9 February 2018 with the Manager of the East Grinstead branch. 42. By letter dated 23 February 2018 Ms Johnston provided a reply to the points raised by the Claimant in his statement sent to Mr Ince on 5 February 2018. The letter concludes: “I believe having responded to your points raised in your letter, there is still a disciplinary case to answer. You will receive this letter response as part of your new disciplinary hearing invite, alongside the additional statement from Kerry Pool”. 43. On the same date the Claimant was sent a letter by Ms Dawson inviting him to attend at a disciplinary hearing on 28 February 2018. The allegations raised in that letter were the same as those previously communicated to the Claimant in the letter 26 January 2018, together with additional allegations of: “Serious breach of food safety policy, food preparation process and allergen processes resulting into safety alerts being issued for the first two points below:  Out of date Kids Bolognese found in kitchen service fridge;  Incorrectly followed process for Vegan Margarita in that it was served without a Santos tomato;  Incorrectly followed process for mushroom preparation”. 44. The letter enclosed copies of further documents that had arisen since the non- attended disciplinary hearing of 5 February of: the Claimant’s statement of 05 February 2018; Ms Johnston’s response to that statement; a statement by Kerry Pool dated 21 February 2018; a statement from Kirsty Kimber dated 21 February 2018; the Claimant’s employment contract; a statement by Sophie Beeson dated 21 February 2018; and a Risk Assessment for Festive and Event Decorations. It also included documents considered to be relevant to the new allegations: an email from Ms Gocek QS Auditor confirming issues found on the day of the audit; the Claimant’s investigation meeting notes from 9 February 2018; and Kerry Pool investigation notes from 09 February 2018. 45. The Claimant could not attend at the date arranged and the disciplinary hearing finally took place on 07 March 2018 conducted by Ms Dawson. The Claimant was accompanied by a colleague. Case Number: 2302386/2018 10 59. The Claimant argued that these matters arose as a consequence of him raising a query over how his annual leave was calculated (although it should be confirmed that his claim before this Tribunal was one of ordinary unfair dismissal only). However, the Tribunal notes that the Claimant was invited to a Stage 1 capability hearing in 2016, which demonstrates that potential performance/attitude issues had been identified by the Respondent prior to the annual leave points being raised by the Claimant. The Tribunal also concludes that there was sufficient evidence produced by employees of the Respondent for it to be considered that there was a genuine issue to be addressed. 60. With regard to whether or not there was a reasonable process, the Tribunal refers to the chronology of events set out above and concludes in all the circumstances that this process was objectively reasonable. 61. The original investigation by the Claimant’s Manager was redone by a Manager wholly independent from the Claimant and his circumstances. 62. The Tribunal concludes that it was reasonable for the Respondent to undertake the additional elements of the disciplinary process, which was initially to make further investigations and then to include matters subsequently arising from the Audit. 63. The Tribunal further concludes that it was reasonable for Ms Dawson to consider the initial disciplinary meetings to form part of the overall disciplinary process completed by the meeting on 07 March 2018. 64. The Tribunal concludes that the Claimant was given invitation letters that itemised the allegations; the Claimant was provided with all the necessary and relevant documentary materials in advance of the meetings; the Claimant was given the right to be accompanied; the Respondent rearranged meetings when the Claimant was unable to attend; the Respondent made and provided to the Claimant notes of the meetings; the Claimant was provided with outcome letters and given a right of appeal; and reasonable steps were taken to facilitate his attendance and involvement in the appeal process. 65. The Tribunal concludes in the circumstances that it was reasonable for Mr Coxhead to deal with the appeal on the information he had available to him. The Claimant sent his additional information to the wrong address and did not supply a further copy as confirmed by Mr Coxhead in his letter of 04 May 2018 and his evidence to the Tribunal. 66. The Tribunal further concludes on balance that the Respondent held a reasonable belief in the Claimant’s conduct. 67. The Claimant argued that the Respondent had identified alleged misconduct of the Claimant that arose on 08 December 2017, but Ms Beeson’s statement of 02 February 2017 confirmed that as at 23 December 2017 she saw the matter as performance development issue and it was later raised as a potential disciplinary point. Case Number: 2302386/2018 11 68. The Tribunal concludes that there were a number of issues of concern that had allegedly arisen over a relatively short period of time in December 2017, as evidenced by the statements made by the individual members of staff, culminating initially with an alleged event occurring on 24 December 2017. The Tribunal concludes on balance that it was objectively reasonable for the Respondent to investigate the matters as a potential conduct issue and Ms Beeson’s accounts do not negatively impact on Ms Dawson’s reasonable belief. 69. It is true that Ms Beeson does not refer to the 08 December allegation in her statement dated 19 January 2017, but then does so in her later statement of 21 February 2018. However, the 08 December event is evidenced by Ms Ambrose and Ms Kimber (who later confirms the accuracy of her statement) and this material was before Ms Dawson. 70. The Claimant argued that the issues were not raised in his performance review by Ms Beeson, but the Tribunal accepts that the matter was treated by the Respondent as a conduct issue, not as a capability point. 71. The Claimant argued that the Respondent always preferred the account of others rather than his own account. The Tribunal concludes that there was sufficient corroboration of events and evidence before Ms Dawson for her to reasonably believe the conclusions she made. 72. With regard to the risk assessment issue, it was reasonable for Ms Dawson to consider that the Claimant appeared to give a conflicting account. He was shown the risk assessment (not signed by him) and stated: “I was just asked to sign, not trained”. When he was read Ms Beeson’s statement the Claimant stated: “That never happened, I sign everything they give me” and accused Ms Beeson of lying. 73. The Claimant contended in the meeting of 22 January 2018 that he knew better than his manager and alleged that Ms Beeson was trying to get him into trouble and get rid of him because of the holiday pay issue. However, the allegations of poor attitude were witnessed by staff other than Ms Beeson and those individuals made independent written statements to that effect. Although attention was drawn on behalf of the Claimant to the statement of Ms Beeson being made on 21 February 2018, some time after the events, this was simply confirmation of her view of all alleged events in which she was involved, which had already been evidenced by others (and herself with regard to some matters). It was reasonable for Ms Dawson to reject the Claimant’s contention. 74. The Claimant’s investigation evidence demonstrates that it was reasonable for Ms Dawson to reach her conclusions with regard to allergen risk. For example in the meeting notes at pages 103 and 104 of the bundle regarding the identification of customers receiving the correct allergen-free food. The Tribunal also considers that it was reasonable for Ms Dawson to conclude that Ms Gocek had not provided an incorrect photograph of the ‘kids bolgnese’. The Tribunal concludes that it was reasonable for Ms Dawson to rely upon and believe the Audit report and concludes that there was no evidence to suggest that Ms Gocek Case Number: 2302386/2018 12 produced information to support the Respondent’s alleged desire to dismiss the Claimant, as he alleged. 75. On appeal, although Mr Coxhead could not recall whether he had seen the group letter of 12 March 2018, the Tribunal accepts his evidence that he would not have accepted an anonymous letter as part of the Claimant’s appeal process. 76. On the evidence reasonably available to him, it was objectively reasonable for Mr Coxhead to believe in the Claimant’s conduct as found by Ms Dawson. 77. Once the Respondent was in a position to hold a reasonable belief in the Claimant’s conduct after a reasonable investigation, the Tribunal concludes that the Claimant’s summary dismissal for gross misconduct fell within the range of objectively reasonable options available to the Respondent. The Respondent considered the Claimant’s employment record and possible alternative sanctions. 78. The allegations relating to interrelations with staff and management, and the breach of food safety policy, particularly with regard to allergens, were sufficiently serious for the Respondent to believe that it amounted to a repudiatory breach of contract warranting summary dismissal. 79. Accordingly, the Claimant’s claim of unfair dismissal is unsuccessful. 80. With regard to the wrongful dismissal claim, the Tribunal refers to the evidence of the members of staff that the Tribunal had before it during this Tribunal hearing and also the content of the audit report. The Tribunal has also taken into account the Claimant’s statements made during the disciplinary stage and produced at the appeal stage, including the letter of 13 April 2008 and has also considered the investigation meeting notes. 81. The Tribunal has also considered the evidence provided to it by both parties at the Tribunal hearing. 82. On balance, the Tribunal reaches similar conclusions on the evidence as Ms Dawson at the disciplinary hearing stage. The Tribunal concludes that the contemporaneous and corroborating accounts of management and staff together with the Audit report are persuasive elements. 83. The Tribunal concludes that there is no material evidence of any collusion or agenda against the Claimant by those who made the statements. The Tribunal also concludes that the Audit investigation officer, Ms Gocek, was entirely independent of these events and the audit account was her genuine professional view. 84. Applying the different test for wrongful dismissal claims compared to those of unfair dismissal, on balance from the evidence before the Tribunal it concludes that the Claimant did commit a repudiatory breach of contract that entitled the Respondent to dismiss without notice and that the wrongful dismissal claim is also unsuccessful.