Claim No. 2205-72/17

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IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

IN THE MATTER:

BETWEEN DAVID LE BRETON

CLAIMANT

AND

ENGLISH & MULLEY (OPTICIANS) LIMITED

RESPONDENT

TRIBUNAL JUDGMENT

Reference: [2017]TRE072 Hearing Date: Tuesday, 19th and Wednesday 20th December 2017 Before: Deputy Chairman Mr. M Salter Panel Members Mrs. S. Southern Mr. M. Therin Appearance: For the Claimant: In person For the Respondent: Ms. Mary Craig

RESERVED JUDGMENT It is the judgment of the tribunal that the Claimant’s claims succeed: he was unfairly dismissed, that dismissal was wrongful and that the Claimant is owed accrued but unpaid holiday. The tribunal awards the Claimant:

a) For unfair dismissal: £14,748.76 b) For wrongful dismissal £6,807.12 c) 2 days accrued but unpaid holiday: £226.90

THE REASONS

References in square brackets below are unless the context suggests otherwise to the tab of the bundle. References with a § that follow a case reference, page, or a witness’ initials, refer to the paragraph number of that authority, tab of the bundle, or witness statement.

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References in round brackets are to the paragraph of these reasons or provide definitions. Introduction 1. These are the reasons for the reserved judgment above.

Background The Claimant’s case as formulated in his JET1 2. The Claimant’s complaint, as formulated in his Form JET1, presented to the tribunal on 22nd May

2017 is, in short, that he was unfairly dismissed by the Respondent, that that dismissal was in

breach of contract as he was not paid his notice period in circumstances where the Respondent

was obliged to pay him and so was wrongful and that he would have accrued two days holiday if

he had been provided with appropriate notice of his dismissal.

The Respondent’s Response 3. In its Form JET2 [2], the Respondent accepted that the Claimant was unfairly dismissed, but

denied that his dismissal was wrongful as matters that came to their attention after the dismissal

which they say permitted the Claimant’s summary dismissal. Further, they contend his

Compensation for the unfair dismissal should be reduced because of this conduct. Finally, they

denied the Claimant was entitled to any holiday accrual throughout the notice period as, they

contend, he was not dismissed in breach of contract.

Case Management to date 4. The matter came before me, Deputy Chairman Salter, on 27th July 2017 for a Case Management

Meeting (“CMM”). At that meeting the Claimant represented himself and the Respondent was

represented by Advocate J-M Renouf. During this hearing, a list of issues was agreed and a two-

day final hearing was listed for 19th and 20th December 2017.

5. The CMM Order is found at [29]. The list of issues was agreed as being:

Jurisdiction of the Tribunal 4. The Respondent accepts that the JET1 was presented within the relevant time

limit.

Unfair Dismissal Qualification 5. The Respondent accepts that the Claimant was an employee, that the Claimant

was dismissed and that at the time of his dismissal the Claimant had sufficient continuous employment to be protected from unfair dismissal.

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Liability 6. The Respondent asserts that the reason, or if more than one reason the

principal reason for the Claimant’s dismissal is a reason relating to the conduct of the Claimant. The issue for the tribunal will be did the Respondent have a genuine belief in the Claimant’s misconduct?

7. The Claimant does not accept that this was the reason or principal reason for his dismissal. Whilst he denies the reason for his dismissal he does not advance another reason for his dismissal.

8. The Respondent concedes that the dismissal is unfair owing to its failure to follow a disciplinary procedure.

Remedies 9. The Respondent will contend the conduct of the Claimant was such that it

caused and/or contributed to his dismissal and that any Compensatory Award should be reduced/extinguished by virtue of r77F(5) and (6), the particulars of the conduct relied upon are:

10.1.1 the Claimant’s conduct during the disciplinary procedure (both initial and at appeal);

10.1.2 the Claimant’s conduct at other times during employment which came to the Respondent’s attention after his dismissal as set out at paragraph xxv-xxviii of the Response to Claim, Section 4.1 of the JET2)

Notice Pay 10. It is not in dispute that the Respondent dismissed the Claimant without notice

on 10th April 2017.

11. Did the Respondent have a right to dismiss the Claimant without notice?

12. If so, does the Respondent prove that it was entitled to dismiss the claimant without notice because the claimant had committed gross misconduct in that it became aware of the matters set out in paragraph xxv-xxviii of the Response. (NB This requires the Respondent to prove, on the balance of probabilities, that the Claimant actually committed the gross misconduct alleged).

13. Both parties agree the Claimant would be entitled to 12 weeks’ notice of dismissal pursuant to Art 56(1)(l) of the Employment (Jersey) Law 2003. Holiday Pay

14. The Claimant contends he is entitled to two days accrued holiday pay; reflecting that holiday that would have accrued during his notice period.

15. The Respondent says there can be no accrual of holiday when employment has been lawfully and appropriately terminated.

16. Subject to the objection above, the Respondent accepts that, if the Claimant had an entitlement to accrue holiday during his notice period, this would amount to two days.

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6. There had been no applications to change the list of issues after the CMM and no applications

were made at the Final Hearing.

7. Various case management orders were made including the delivery of a file of papers to the

tribunal by Monday, 11th December 2017 to enable the tribunal to pre-read the papers and

witness statements. The Respondent did not comply with this order and despite communications

from the Tribunal had not complied with this by Monday, 18th December.

Unless Order 8. In exercise of my powers under Art 25 of the Employment and Discrimination Tribunal

(Procedure) Order 2016 (“the 2016 Order”), on Monday, 18th December I made an Unless Order

in the following terms:

UNLESS ORDER

WHEREAS this matter is listed for Final Hearing on Tuesday, 19th December 2017 and the Respondent was, in accordance with the Case Management Meeting Order of 27th July 2017, ordered to provide the Claimant and Jersey Employment and Discrimination Tribunal with the files for that Final Hearing by 11th December 2017, this to date, has not been done. Therefore, IT IS ORDERED that: Unless the Respondent, by 12 noon on Monday, 18th December 2017:

a)delivers four copies of the complete file of papers in this matter, as ordered at the Case Management Meeting on 25th July 2017, to the Jersey Employment and Discrimination Tribunal; and

b)has delivered one copy of the complete file to the Claimant; and

c) confirms the above to have been done, then the Response shall be dismissed without further order of the Tribunal in accordance with Article 25 of the Employment and Discrimination Tribunal (Procedure) Order 2016

9. In purported compliance with this Order the Respondent delivered three copies of the Bundle to

the tribunal for the Tribunal’s use, and an extra copy for the Claimant on Monday, 18th December.

However, the Claimant did not receive his bundle until he attended Tribunal at 0850 on 19th

December 2017.

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10. Clearly there was, therefore, a breach of the Order and the Respondent was struck out in

accordance with the terms of the Unless Order without the tribunal needing to make any further

order.

The Final Hearing 11. On 19th December 2017, the matter came before us for a final hearing. At this hearing the

Claimant represented himself and the Respondent was represented by Ms. Mary Craig the

Managing Director of the Respondent.

The Unless Order 12. The Respondent attended the hearing on 19th December and had sought to comply with the

terms of the Order, albeit very late in the process. Further, the Claimant did not argue he was

prejudiced by the Respondent’s failure and did, in fact (see below) want to proceed with the Final

Hearing on the 19th December.

13. In these circumstances, bearing in mind the Overriding Objective contained in Article 2 of the

2016 Order, the tribunal decided it would not further that objective in these circumstances to

prevent the Respondent from participating in this Hearing. Accordingly, therefore we exercised

out power in Art 25(2) to set aside the unless order’s strike out. We considered the formal

requirements for the application to be in writing unnecessary in these circumstances to deal with

this aspect of the claim fairly and justly in these circumstances.

Late service of the Bundle 14. As stated above the Claimant did not receive the bundle (two-lever arch files) until he attended

the tribunal at 0850 on the first day of the Final Hearing. Whilst the tribunal explained the

opportunity for the Claimant to apply for an postponement if he so wished, the Claimant told us he

wished to proceed with the hearing and did not want to make an application to postpone the

hearing.

Copies of the Bundle 15. The Respondent did not provide the correct number of copies of the bundle and so the matter

was adjourned for 40 minutes for the Respondent to obtain an extra copy of the bundle for use in

the witness box. This was done.

Without Prejudice Material 16. Contained within the bundle was a not small amount of documentation marked “without

prejudice”. This material had been read by the tribunal in advance of the hearing. The tribunal

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checked with the parties whether they wished to waive the Without Prejudice privilege or whether

it had been inserted in error or without a party’s consent. After an adjournment during which time

the parties considered if they wished to waive the privilege, both of the decided they did wish to

waive the without prejudice privilege.

17. Having resolved these issues and with no other matters raised by the parties the Final Hearing

proceeded.

General Comment 18. We should say that the parties represented themselves particularly well in this matter which

clearly is a very personal and emotional one for them both. They are to be commended for this.

Documents and Evidence Witness Evidence 19. The tribunal heard evidence from the Claimant on his behalf. The Tribunal also heard evidence

from the following witnesses on behalf of the Respondent: Ms. Mary Craig, who is the owner and

managing director of the Respondent; Ms. Sian Williams-Wright, who was the HR advisor to the

Respondent through her own company Rainbow HR and Ms. Jane Jameson, who heard the

Claimant’s appeal against the warning he received.

20. All witnesses gave evidence by way of written witness statements that were read by the tribunal

in advance of them giving oral evidence. All witnesses were cross-examined.

Bundle 21. To assist us in determining the claim we had before us an agreed bundle consisting of two arch-

lever files prepared by the Respondent. These files were un-paginated but consisted of some 55

separately divided sets of documents. There was some repetition of the papers.

Submissions 22. Neither party provided written representations. However, both parties made their arguments orally

by way of brief submissions.

The Material Facts 23. From the evidence and submissions we made the following finding of fact. We make these

findings after considering all the evidence before us, taking into account relevant documents

where they exist, the accounts given by the Claimant, Ms. Jameson, Ms. Williams-Wright and Ms.

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Craig in evidence, both in their respective statements and in oral testimony. Where it has been

necessary to resolve disputes about what happened we have done so on the balance of

probabilities taking into account our 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, we do not address every episode covered by that evidence, or set out all of the

evidence, even where it is disputed. Rather, we have set out our principle findings of fact on the

evidence before us that we consider to be necessary in order to fairly determine the claims and

the issues to which the parties have asked us to decide.

The Parties 24. The Respondent is a well-known optometrist in St. Helier. Ms. Craig is the owner of the

Respondent, its Managing Director and a trained and experienced Optometrist who worked at the

Respondent before buying it.

25. The Claimant was, until his dismissal, an Optical Technician with the Respondent. At the time of

his dismissal he had been employed by the Respondent for just under 25 years. Until early 2017

he did not have any form of disciplinary record. At the time of his dismissal he worked 37.5 hours

a week Monday to Friday.

26. For the greater part of his employment with the Respondent the Claimant had a close relationship

with Ms. Craig, who, in turn, describes her relationship with the Claimant in warm terms and who

described the workplace to us as “like a family”.

27. Ms. Craig took some time away from the business and upon her return felt it was necessary to

engage a team building expert in order to open lines of communication between herself and the

employees from whom she had been absent for a period of time. This was done and was a

success, although Ms. Craig honestly and openly told us that whilst she did not expect the

relationships to return to her pre-absence levels immediately she felt that the process she went

through with the team was a journey and was optimistic of returning those historic levels in the

future.

Summer 2016 28. In the Summer of 2016 one of the machines at the Respondent, which the Claimant used, broke

down. He obtained a quote for the repair of this machine. From this point on the Claimant

perceived that there was a distinct change in his relationship with Ms. Craig, who, he thought,

became more distant and would not, for example, acknowledge him on the mornings. In her

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evidence however, Ms. Craig did not perceive any change in her relationship as a result of this

incident.

November 2016 29. At the end of British Summer Time, the clocks changed with the effect that nightfall occurs earlier

in the day. The Claimant is an observer of the Sabbath and so had always left work in advance of

nightfall on a Friday. At the beginning of November 2016, he left work in advance of night fall. As

a result of the clock changing the Sunday before, this was earlier in the day than it had been until

that point in the year.

30. We are told, and we accept that the Claimant leaving early was recorded in the Respondent’s

diary, and, in any event, was well known to the Respondent and its staff.

31. We have heard that the Claimant’s leaving caused the early closure of the business, which

understandably caused Ms Craig dissatisfaction. A disciplinary investigation was commenced into

the Claimant’s conduct.

32. Ultimately this investigation resulted in five allegations being raised against the Claimant. These

are set out in a letter dated 14 December 2016 [3] and are particularised as:

1. Unauthorised closure of the business during normal practice hours 2. Failure to comply with a direct instruction 3. Failure to communicate openly with the Managing Director on operational matters 4. Failure to maintain an orderly and clean workspace 5. Unauthorised Facebook posts that have no connection to English and Mulley

33. There was an disciplinary hearing into these allegations [4, 5 and 6] and at the end of the

disciplinary hearing (conducted by Ms. Williams-Wright on behalf of the respondent) three

allegations were totally rejected, namely allegations 1, 2 and 5 above; one, allegation 4, was fully

upheld and the last, allegation 3, was partly upheld. This resulted in the Claimant receiving a

written warning for his conduct. The outcome letter of this meeting is at [55]

34. The outcome letter also made general recommendations about the need to improve

communication between the employer and employee (a point Ms. Williams-Wright notes in her

witness statement) to undertake a review of working practices, to undertake a general

housekeeping exercise and a health and safety risk assessment.

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35. In her witness statements, but nowhere in any of the contemporaneous documentation, Ms

Williams-Wright complains that the Claimant, when being provided with the outcome of this

disciplinary hearing ““flipped” and he became loud, aggressive and intimidating at that meeting”.

He got out of his chair and was standing over me refusing to listen to anything I was saying. I felt

in fear of my personal safety and was concerned as to what was going to happen next. I

explained again, firmly, yet calmly what he had to do in order to appeal. He seemed unable and

unwilling to acknowledge or accept any responsibility for his actions. I was very surprised and

shocked.” The Claimant denies he acted in this manner. Unfortunately there are no notes of that

discussion so we have had to do the best we can with the recollections of the people present.

Having considered the evidence on this point the tribunal prefer the evidence of the Claimant. We

are particularly struck by the fact that an experienced HR advisor such as Ms. Williams-Wright

appears to have raised no complaint about this conduct at the time, or, for that matter, recorded

this conduct in any contemporaneous document we have been referred to. Further, other

documents make no reference to this behaviour: for instance, the paperwork concerning the

second disciplinary process (see below) is entirely silent about this alleged behaviour.

36. Ms. Craig also made an allegation concerning the Claimant’s behaviour. She alleged that he

blocked her way one day and caused her to feel intimidated by his behaviour. The Claimant

denies this occurred. Again, there is no contemporaneous evidence of this allegation, and it is

surprising that no action was taken by the Respondent on this if it occurred. On balance, we

preferred the evidence of the Claimant on this allegation and consider that the Respondent has

not satisfied us that this behaviour occurred.

37. Furthermore, other witnesses for the Respondent, namely Ms Jameson provide corroboration that

the Claimant was calm and polite during her dealings with him. Whilst this is of little direct value

for the allegations concerning his behaviour to another person at another time, it does to a small

degree provide some support for the conclusions we formed of the Claimant’s behaviour at the

disciplinary meeting.

38. The Claimant’s appeal was heard by Ms. Jameson on the 3rd March 2017 [9] who issued her

outcome on 7th March 2017 [12]. She rejected the appeal.

39. A short while later, in March 2017 an issue arose concerning the order placed by Patient C. This

patient was a school-age young adult who went to school in the UK. He was served by the

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Claimant. The order was for two sets of glasses. However Patient C informed the Claimant that

he did not need the two sets immediately, but instead would only require one set by the upcoming

Friday when he returned to UK to school. The other set could await his return to Jersey from the

UK.

40. Patient C’s parent then telephoned the store to pay for both pairs of glasses. However, they could

only pay for the one set that had been completed and not the second pair. Ms. Craig became

involved with the order and as a result of the confusion that had arisen commenced disciplinary

proceedings.

41. The Claimant was sent a letter dated 29th March 2017 [15]. The allegations against the Claimant

were that his conduct has led to a:

1. Failure to provide the patient with most efficient and timely service levels resulting

in the need for the Managing Director to intervene in order to reduce the risk of damaging the relationship between the company and the patient;

2. Lack of communication with the patient on all possible options available to them and failure to proactively seek advice or discuss this matter the (sic) Managing Director.

42. Ms. Williams-Wright was to conduct the disciplinary hearing. However, on 29th March the

Respondent was aware that unfortunately Ms. Williams-Wright would be unable to hold the

hearing for “at least three weeks” and so the disciplinary hearing was postponed. The claimant

was informed of this by way of letter dated the 29th March 2017 but which was not actually

delivered to his workspace until the 1st April 2017, and he did not see it until the 3rd April 2017

[16].

43. Be that as it may, the Claimant had already written to the Respondent on 31st March 2017 saying

he did not feel able to “attend the meeting on Tuesday” [14] as he wanted more information about

the allegations he faced. We have no hesitation in rejecting the Respondent’s account that the

Claimant had said he was not going to attend any meeting with the Respondent: that is clearly not

what the letter says. Indeed, the meeting was never going to proceed on Tuesday, 4th April 2017

anyway (albeit the Claimant did not know that at the time he wrote the letter).

44. We should note that The Claimant was not suspended during this process, unlike for the process

in the earlier part of 2016.

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45. Whilst awaiting the disciplinary process the Claimant presented a grievance to the Respondent

alleging that he was being bullied by Ms. Craig and Ms. Williams-Wright. This was sent to the

Respondent on 4th April 2017 [18] and, to us, appears to be a measured and thorough grievance.

Ms. Craig, in answer to questions from the Deputy Chair accepted that the Claimant had a right to

present a grievance

46. The Respondent took advice on this grievance [2 §xxiii]. Ms. Williams-Wright’s witness

statements says that “it was suggested that the Claimant was doing this to frustrate the process”

[SWW §24]. When asked, Ms. William-Wright was unable to say who had “suggested” this. Ms.

Craig denied it was her who had suggested this.

47. On the 10th April 2017 the Claimant was asked to attend a meeting. Also present was Ms.

Williams-Wright and Ms. Craig. Ms. Craig then proceeded to read out a script to the Claimant

summarily dismissing him [37]. The script reads:

“Following recent proceedings under the Company’s disciplinary procedure and your subsequent raising of a formal grievance we have concluded that the employment relationship has reached an irretrievable breakdown of trust and confidence and therefore I confirm that your employment with English will terminate with immediate effect”

48. The Claimant’s dismissal was to be on notice but, in accordance with his contract of employment,

with a payment made in lieu of that notice. However, for the reasons set out below the

Respondent did not pay the Claimant’s notice pay.

49. We must express some surprise that Ms. William-Wright was in attendance at this meeting seeing

as she was not the employer, was unable to attend meetings through her personal circumstances

and was one of the subjects of the Claimant’s grievance which, the Responded claims, played a

causative role in the Claimant’s dismissal.

50. Subsequent to the Claimant’s dismissal but before the 20th April 2017 the Respondent undertook

investigations into the Claimant’s work area and computer which, they contend [2 §xxv] would, if

known at the time of the first disciplinary hearing, have resulted in the Claimants dismissal for

gross misconduct. There are some 9 separate allegations pleaded in the Respondent’s Response

to Claim [2]. We should note that Supplemental evidence 8 is merely the provision of a document

in support of earlier allegations and not an allegation in its own right.

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51. Albeit not chronologically correct to address them here, it seems sensible to do so as they only

became known to the Respondent after the dismissal and cannot affect the decision to dismiss.

1 Deliberate lying to the Respondent regarding his representing them at Silmo. 52. The Respondent claimed that the Claimant had deliberately lied to them as he was not, he says,

representing the Respondent when he attended the Silmo Exhibition. This as one of the

allegations he faced in the first disciplinary hearing, and was one that was not upheld. However,

the Respondent contends that it discovered his badge [2 supplemental evidence 1] for that

exhibition which recorded the Claimant as working for it. The Claimant’s denial he was there

representing the Respondent was, therefore, the Respondent contends a lie.

53. The Claimant denies he lied and says that when he was completing the form online to register for

the exhibition he was asked who he worked for; he inserted the Respondent’s name and this

ended up on the badge. At no point, he tells us, was he representing the Respondent.

54. Having heard all the evidence on this point from the Claimant, and the Respondent’s assertion

that the Claimant is lying, we find the Respondent has not satisfied us that the Claimant was

guilty of this conduct, namely that he deliberately lied about his attendance at Silmo. The

Claimant’s account was coherent and credible.

2 Email exchange with a Supplier 55. The Respondent contends that the email exchange [2 supplemental evidence 2] shows the

Claimant deliberately lied to the Respondent concerning his attendance at Silmo. We find it does

no such thing. Indeed, it would seem to confirm what the Respondent says the Claimant told

them in the investigation meeting [5 §16] where he is asked: “did you attend the exhibition?” and

the Claimant says:

“I did, yes.”

56. The Respondent therefore was seemingly aware of the Claimant’s attendance prior to the

Claimant’s dismissal and the email does not catch the claimant in a lie.

3 Arranging a Supplier Visit when at Silmo 57. The Respondent contends that the emails at [2 supplemental evidence 3] show that the Claimant

had “not been acting for some time in the best interests of the Respondent but had been using

the Respondent’s suppliers and contacts in furtherance of his own personal interests”. We reject

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this contention and do not consider that this email demonstrates anything nearing gross

misconduct. We particularly reject the assertion that this shows the Claimant was acting not in the

Respondent's best interests; the email shows nothing of the sort.

58. The Respondent’s assertion here must therefore fail.

4 Email Exchange between Supplier and Claimant 59. This, the Respondent contends shows the Claimant had a visit to a supplier of the Respondent

without the Respondent’s authority or knowledge [2 and supplemental evidence 4].

60. We consider that if the Claimant is going to visit the suppliers of his employer he may have been

best advised to have alerted the Respondent to this, even if the visit was during his free time.

However, we reject the contention that such behaviour is gross misconduct that would entitle an

employer to summarily dismiss a long-standing employee. The Claimant was not at work at this

time and we have not been provided with any evidence that anything the Claimant did there was

improper.

61. This may be an example of something the tribunal considered was prevalent throughout the

evidence we had heard: namely a lack of communication between Respondent and claimant, in

circumstances where the primary obligation is on the employer.

5 Email exchange with Friend 62. The Respondent alleges that the email exchange between the Claimant and a friend of his [2 and

supplemental evidence 5] in 2007 provides it with material from which it can suspect the Claimant

did not charge his friend for the frames referred to.

63. We remind ourselves again that the Respondent has to show that this act actually occurred and

must do so on the balance of probabilities. A mere “suspicion” of it occurring is unlikely to satisfy

this burden, and on the facts we have heard does not do so in this case.

64. The Claimant informs us that the price of £80 was paid for the frames. The Respondent’s

suspicion does not satisfy us that the Claimant is not telling us the truth. The Respondent has

failed to satisfy us that the Claimant and his friend were party to a fraud on it.

65. The Respondent’s allegations here fail.

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6 Email exchange between a supplier and the Claimant 66. The Respondent contends [2 and supplemental evidence 6] that this email exchange between the

Claimant and a supplier about locating a shop in the North of England that sells a particular type

of frame in circumstances where there is no evidence that the customer was going to travel to

Jersey to buy from the Respondent, “demonstrates that the Claimant had no regard to the fact

that his time at work should have been utilised for the sole interests of the Respondent’s

business”. Accordingly his enquiry of the supplier was, the Respondent argues, such that it would

entitle them to dismiss him summarily.

67. The tribunal have little difficulty in rejecting this assertion. The Claimant explained the

circumstances of this email: a person who lived in the North of England saw the frames on the

Respondent’s Facebook page and enquired if the frames were sold in the North of England. The

Claimant made an enquiry of a supplier he knew in that region.

68. We accept this is not an action that was taking business away from the Respondent; we have no

evidence that the customer was going to attend St Helier and would buy the frames from the

Respondent.

69. Looking at the length of the email, it must have taken the Claimant moments to type the email

and send it. The tribunal do not consider that such an email in these circumstances amounts to

misconduct, let alone gross misconduct. Indeed, the tribunal view the Claimant’s actions as a

hallmark of good service to an enquiry from a member of the public.

70. As such the Respondent’s contentions here fail.

7 An email exchange which shows the Claimant was actively damaging the reputation of the Respondent with its suppliers and shows a blatant disregard for the Respondent’s policies 71. [2 supplemental evidence 7) the Respondent needs to show that this conduct actually occurred

for any defence to a claim of wrongful dismissal to succeed. Similarly, for allegations of

contributory fault, the Respondent needs to show that the Claimant did the act complained of. We

have heard no evidence of the Claimant actively damaging the reputation of the Respondent as

alleged.

72. In fact, all this email shows to the tribunal is that whilst the Claimant disagreed with a policy he

was applying it. This does not, we find, amount to gross misconduct.

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9 Written Notes concerning Patient C 73. The Respondent contends these notes lack detail “in order to conceal full facts of the matter and

safeguard his position” [2 §xxv(9) and supplemental evidence 9]. The first thing we note about

these documents is that they are not the Claimant’s notes, but are, rather, notes seemingly made

by Ms. Craig and appear to have been made after the event: for instance they refer to matters in

the past-tense.

74. The high-point of this appears to be that when asked for a verbal account of the C order the

Claimant gives it and is told this “should have been written on the record so that we would know

the situation” [see last page of Supplemental evidence 9 §2].

75. There is nothing in this material or the evidence we have before us which leads us to find that the

Respondent has shown, on the balance of probabilities, that the Claimant was seeking to

“conceal full facts of the matters and safeguard his position” as alleged.

76. As such the Respondent has not satisfied us that this act occurred as alleged.

10 Telephone Transcripts between a supplier and the Claimant 77. These concern the C order. The Respondent contends that they show the Claimant deliberately

chose to act against the best interests of the patient in the fulfilment of the order in preference to

his own interests [2 §xxv(10) and supplemental evidence 10].

78. The Claimant explained to us in some detail why he preferred using stock lenses for glasses and

the circumstances of the C order, which we have set out above. The Respondent, for its part, has

been unable to gainsay this account. Indeed, the transcripts appear to us to confirm the

Claimant’s account that one set of glasses was needed by Friday whereas there was less time-

pressure on the second frame.

79. In these circumstances, the tribunal do not find the Claimant committed any act of misconduct

and the Respondent has not identified what the claimant’s “own interests” were that they say

these transcripts show he was furthering.

80. Again, therefore the Respondent allegations here fails

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The Law 81. So far as is relevant the Employment (Jersey) Law 2003 (“E(J)L”) as amended states:

61 The right (1) An employee shall have the right not to be unfairly dismissed by his or her

employer. (2) Paragraph (1) shall have effect subject to the following provisions of this Part. 62 Circumstances in which an employee is dismissed (1) For the purposes of this Part an employee is dismissed by his or her employer if

(and, subject to paragraph (2), only if) – (a) the contract under which the employee is employed is terminated by the

employer (whether with or without notice); 64 General (1) In determining for the purposes of this Part whether the dismissal of an employee

is fair or unfair, it shall be for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal;

and (b) that it is either a reason falling within paragraph (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.

(2) A reason shall fall within this paragraph if it – …

(b) relates to the conduct of the employee; … (4) Where the employer has fulfilled the requirements of paragraph (1), the

determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall – (a) depend on whether in the circumstances (including the size and

administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(c) be determined in accordance with equity and the substantial merits of the case.

77F Compensation awards … (5) The Tribunal considers that any conduct of the complainant before dismissal (or,

where the dismissal was with notice, before the notice was given) that contributed directly to the dismissal was such that reduction of the award is just and equitable.

(6) For the purposes of paragraph (5), the Tribunal may take into account conduct

committed whilst in employment which came to light after notice was given or the act of dismissal occurred.

… (10) Any circumstances that the Tribunal considers would be just and equitable to

take into account.

Claim No. 2205-72/17

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Authorities and Texts 82. Neither party referred the tribunal to any case law, and the tribunal would not have expected them

to. Indeed, with the admission that the dismissal was unfair the need for reference to case law

was limited in this matter.

83. We remind ourselves that it is the factual allegation must be distinguished from the label that is

applied to it when justifying dismissal: if the facts are the same then a wrong label may not affect

the tribunal’s decision making process. For instance, where the employer has made a genuine

mistake and where the facts/beliefs that led the employer to dismiss were known to the employee

at the time of the dismissal and fully aired in the proceedings then the tribunal can ignore the

wrong label: Abernethy v Mott, Hay and Anderson [1974] ICR 323. The re-labelling of the reason

can also be done by the tribunal again provided all the issues were ventilated in the tribunal and

the employees not prejudiced: Jocic v London Borough of Hammersmith and Fulham EAT

0194/07.

Conclusions on the Issues 84. We took time assessing and looking through our notes of the cross-examination as well as the

written statements and documents; we considered with care the submissions, the legal provisions

and guidance in case law. Having made the findings of fact set out above, we returned to the

agreed issues in this case in order to make these conclusions.

Unfair Dismissal 85. The Respondent has accepted that the dismissal was unfair within the meaning of Article 64(4) in

that they accept they did not follow any procedure when dismissing the Claimant. This

concession was, in our view, inevitable in light of the facts.

86. However, the Respondent asked the tribunal to determine whether, effectively, the Respondent

had a genuine reason for the dismissal of the claimant. We remind ourselves we are to look at

what the Respondent knew at the time of the dismissal: the 10th April 2017.

87. The material before us up to this date is confused: there is, for instance no mention of misconduct

in the letter dismissing the Claimant, the dismissal is stated as being for a breakdown in the

relationship between the claimant and Respondent.

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88. The Tribunal considers it can put great weight on the language of the script as a

contemporaneous record of the Respondent’s decision. It is the conduct during the disciplinary

procedure which we are told encompasses the entire of the procedure leading to the warning,

and the grievance that led to the Claimant’s dismissal. We will come back to the allegations

concerning the claimant’s conduct during the disciplinary procedure and appeal later, but note for

now that there had been no contemporaneous complaints about his conduct at the time, and that

no disciplinary proceedings were commenced in relation to it and the same is not referred to in

the script or the letter of that same date confirming the Claimant’s dismissal [37].

89. We too share Ms Williams-Wright surprise that despite these accusations the word “misconduct”

is not mentioned at all in this letter or script. This being said, as we have set out above, the case

law requires us to look at the facts underlying the dismissal rather than the label attached to it and

to see whether those facts can fit within one of the potentially fair reasons for dismissal contained

within the E(J)L.

90. A break-down in the working relationship can be a potentially fair reason for dismissal within the

parameters of E(J)L Art 64(1)(b) in that is amounts to “some other substantial reason…” for

dismissal. Potentially it can be a fair reason.

Did the Respondent have a genuine belief of this breakdown? 91. We find that the Respondents did genuinely believe that there was a breakdown in the

relationship it had with the Claimant; in its view the situation had degenerated into two disciplinary

proceedings in quick succession and a grievance being entered by the Claimant.

92. Whether or not this genuine belief was a mistaken one is a question we are not required to

resolve but if we were required to resolve it we would have found that the relationship had not in

fact broken down irretrievably but was the victim of a noted lack of communication between the

respondent and Claimant, in circumstances where the obligation to mend the relationship rested

primarily on the employer.

93. If we were required to do so we would have found that the Respondent’s genuine belief was not

based on any reasonable grounds and certainly did not come as a result of a reasonable

investigation. It would appear to us from the script of the meeting of 10th April 2017 that the

reason for the Claimant’s dismissal was that he entered a grievance about the way he perceived

Claim No. 2205-72/17

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he was being treated. We were told by Ms. Craig that she accepted the Claimant was entitled to

enter a grievance about the way he thought he was being treated.

94. This is in stark contrast to the asserted view of the Respondent in its pleadings that the grievance

was an attempt to thwart and frustrate the disciplinary process, an assertion which Ms. Craig

denied making, and Ms. Williams-Wright could not remember who first made this suggestion. The

tribunal find that this is indicative of the mistaken and not-reasonable approach taken by the

Respondent in its dealings with the Claimant.

Unfair Dismissal Compensation

95. The Tribunal award the Claimant 26 weeks’ pay in accordance with the Employment

(Awards)(Jersey) Order 2009 at £567.26 a week: £14,748.76 [1 §5.2].

Contributory Fault (r77F(5) and (6) (Unfair dismissal only) 96. Did the Claimant commit the acts complained of during the disciplinary process and as set out in

paragraphs xxv-xxviii of the Response to claim

97. We find the Claimant did not do anything culpable or blameworthy during the disciplinary process.

As we set out above there are no contemporaneous documents from Ms. Williams-Wright that

support her assertions of the Claimant’s behaviour in the disciplinary meeting, the Respondent

did not consider it necessary to suspend the Claimant owing to his behaviour at any time, or

when the second disciplinary proceedings were commenced. Further, the dismissal script and

letter make no mention of this behaviour.

98. As far as paragraph xxv-xxviii of the Response to claim is concerned we repeat our findings in

relation to the Claimant’s wrongful dismissal: he did not commit these acts, and if these acts were

committed they were not culpable or blameworthy conduct on his behalf. As such we will not

consider whether to reduce the claimant’s compensation for his unfair dismissal under Article

77F(5) or (6) of the E(J)L.

Art 77F(10) (unfair dismissal only) Any other circumstances we consider just and equitable? 99. Although this is not pleaded by the Respondent as a ground on which it was requesting us to

consider reducing the Claimant’s compensation the tribunal do not feel it is limited by this lack of

particularisation. Indeed, it would, we feel, be an error of law to ignore the E(J)L’s express

requirements.

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100. We consider that this article includes considerations of the principle in Polkey v AE Dayton

Services [1988] AC 344, namely that if the Respondent can show it could have fairly dismissed

the Claimant the tribunal can reduce the Claimant’s compensation to reflect the possibility that the

employer would have done so.

101. We are conscious not to substitute our own decision for that of the employer and so ask

ourselves absent the total lack of a procedure could a reasonable employer have dismissed the

claimant in these circumstances. We find that it could not, we find that a reasonable employer

would have realised that the relationship was not irretrievably broken, that the matters it

expressed concerns over were not acts of misconduct at all and that the dismissal of a long-

serving employee like the Claimant would, in our opinion, in these circumstances have fallen

outside the band of reasonable responses.

102. Accordingly, we decline to make a reduction to the Claimant’s compensation under art 77F(10). Wrongful Dismissal Did the Claimant commit the acts complained of in paragraph xxv-xxviii of Response to Claim? 103. We have set out above our findings in relation to the matters contained in paragraphs xxv-xxviii of

the Response to Claim. We have found the Respondent has failed in discharging the burden of

proof which it is subject to and, therefore, has not satisfied us that these acts occurred or that

they amounted to gross misconduct (as the case may be). As such the Respondent had not

grounds to summarily dismiss the Claimant.

104. He is, therefore, entitled to 12 weeks’ pay as agreed at the CMM [29 §13]. This figure is

£6,807.12 gross.

Holiday Pay 105. In light of our findings above we are of the view the Respondent was not entitled to dismiss the

Claimant summarily.

106. In such circumstances, the Respondent accepted at the Case Management Meeting that the

Claimant would be entitled to receive two days’ pay reflecting holiday entitlement he would have

accrued during his notice period [29 §16].

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107. This figure is £567.26 for a week, divided by 5 days, times by 2, or £226.90.

Mr M Salter, Deputy Chairman

Date: Tuesday, 16 January 2018