Case No. 11/43

THE EMPLOYMENT TRIBUNAL

BETWEEN:

Claimant: Respondent:

Nigel Christopher Moody Cubbin and Bregazzi Limited

HELD AT:

CHAIRPERSON:

THE EMPLOYMENT TRIBUNAL

Douglas

Dr Sharon Roberts

ON: 30th August 2011

MEMBERS: Mr F.B. Q'Friel

Mr P.c. Murcott

REPRESENTATION

Neither party was legally represented .

The Claimant appeared in person and the Respondent was represented by Mr David Michael

Pickavance a director of the Respondent.

DECISION OF THE TRIBUNAL

The Tribunal unanimously finds that the Claimant was unfairly dismissed and awards the

sum of £6,616.07.

REASONS

1. The Tribunal heard evidence from the Claimant and Mr David Michael Pickavance.

(Mr Pickavance')

2. The Respondent also submitted (very late in the day) statements from the following

of its employees namely Rumana Swinton, Sandy Smith, Mark Bienvenu and Michael

Kenny. All were signed, dated and contained a statement of truth (the Statements,).

None of the statement makers of the Statements were called to give evidence.

Despite the very late filing of the Statements the Claimant did not want an

adjournment to consider the Statements further.

3. The Claimant stated in his claim form and in his evidence that he commenced work

with the Respondent in June 2003. The evidence from the Respondent was that he

commenced work in June 2002. The Respondent produced a letter of engagement

which supported the evidence of a commencement date of June 2002.

4. However, the matter of the commencement date of employment does not rest there.

It was common ground between the Claimant and Respondent that the Claimant

went to prison for six weeks in or about April 2005.

5. The evidence of Mr Pickavance was that the Claimant was not employed by the

Respondent for the period of his incarceration although he was promised he could

have a job back with the Respondent when he came out of prison. Mr Pickavance

said there was no obligation to re employ him.

6. In contrast the Claimant said in evidence he had continued to be paid whilst he was

in prison for the six weeks. Four of those six weeks were treated as holiday pay and

the last two were simply wages as normal. Later in a letter dated the 7th September

2011 the Claimant advised he was sentenced to 12 weeks imprisonment and served

six weeks in prison from the 15th March 2005 until the 26th April 2005 inclusive.

7. The Claimant had no documentary evidence to support his assertion that his

employment was continuous from 2002 until his dismissal in 2011.

8. Mr Pickavance on hearing the evidence of the Claimant that he continued to be paid

throughout the period he was in prison was surprised and had some doubts this

might be the case.

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9. Mr Pickavance was permitted to go back to his office to see if he could find any other

records to illuminate the matter of whether there was a break in the employment of

the Claimant whilst he was in prison.

10. Mr Pickavance later produced a handwritten sheet of paper headed 'March OS' which

showed hours worked for various employees including the Claimant. For the Claimant

it states;

"Pay up -- 14th March only this month" ('the Handwritten Paysheet').

For other employees it stated number of hours worked and for two appeared to

include an element of commission on sales. There was also produced pay reports

('the Pay Reports') which show that the Claimant was paid £552.12 for a monthly

period ended 26th April 2005 and £1329.17 for a monthly period ended 25th May

2005 which illustrates the Claimant was not paid for a full month's work in April

2005.

The Pay Reports could not have been entirely accurate as they stated the date of

birth of all the named employees as 1 January 1900 and the date of joining the

Respondent also as 1 January 1900. They did however all have different tax codes

and salaries and addresses.

11. Mr Pickavance had spoken to his father (Mr Pickavance senior) who was more

actively involved in the business in 2005 and Mr Pickavance related that Mr

Pickavance senior said the Respondent did not know the Claimant was in the criminal

court in 2005 until he asked for the day off to go to court that same day. The

Claimant was convicted and sentenced the same day and went straight to prison for

4 weeks he said.

12. The Tribunal had no statement or evidence from Mr Pickavance senior other than the

hearsay evidence of Mr Pickavance.

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13. In response to matters detailed in paragraphs 10 and 11 hereof the Claimant advised

that his mother's conversation with the then director of the Respondent, Mary

Pickavance, was that the employment would continue whilst the Claimant was in

prison but he would not be paid for 4 weeks but would be entitled to accrued

holidays.

14. The written statement of terms and conditions of employment is dated the 29th July

2008 and does not state when the employment began.

15. Moving onto the dismissal, Mr Pickavance saw that the Claimant failed to come to

work on the 4th April 2011 and also failed to contact the Respondent to advise he

was not coming in.

16. The Claimant accepts this is true except that he did send a text to Mr Pickavance at

6.09pm on the 4th April 2011 to apologise. The text states as follows:

"Hi David,sincere apologies for today,I know I should of rang to say I wasn't coming

I'n,the reason being I've had a few personal problems over the wkend and my head

is all over the place,! just need a bit if time to get myself back together again,I'm not

I'n any trouble or owt its just personal stuff."

17. Mr Pickavance said this was not the first time the Claimant had been sick on a

Monday. It followed somewhat of a pattern and Mr Pickavance said that the effects

of alcohol the night before did not in his opinion constitute sickness. It was self

inflicted and avoidable.

18. Mr Pickavance produced the following emails:

• 11th Feb 2008 (a Monday) note to the effect that the Claimant had phoned in

sick (vomiting, migraine, Celtic match etc (sic))

• 27th Oct 2008 (a Monday) note to the effect that the Claimant was unwell and

would not be in

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• 17th Nov 2008 (a Monday) note to the effect that the Claimant would be

'spoken to' about his absence that day.

19. Mr Pickavance said that when the Claimant came back to work on Tuesday the 5th

April 2011 he told him to go home as he wanted to consider what to do about his

employment.

20. Mr Pickavance said that some time earlier the Claimant had left a message on the

answer machine at work at 4.30am Monday morning saying he was ill and would not

be coming to work that day. Sandy Smith and Mark Bienvenue in their statements

said they heard this answer machine message and the Claimant sounded very

inebriated. ('the Answer Machine Incident')

21. Mr Pickavance said he held a disciplinary hearing about the Answer Machine Incident

in the kitchen of the workplace. He did not keep any written record and could not

remember the date. It might have been 2009. He gave the Claimant what he termed

a final verbal warning to the effect that the Claimant should not be absent from work

without good reason and should notify of absence before 9am. Furthermore it was

implied that he should not leave drunken messages on the answer machine.

Mr Pickavance said there was no policy as to when the warnings expired.

22. During the day of the 4th April 2011 whilst considering what to do about the

Claimant's employment, it came to light that the Claimant had taken a footstool

home. Staff were allowed to make purchases from the store but only with prior

permission from Mr Pickavance or his own manager. The Claimant had obtained

permission from Sandy Smith who was a shop manager with no authority to grant

such permission according to Mr Pickavance. ('the Footstool Evidence')

23 . Mr Pickavance also learned on the 4th April 2011 that the Claimant had behaved in a

bad tempered way on the 30th March 2011 when he threw tools out of a works van

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and left them on the floor and refused the request of his manager to move them.

('the Van Tools Evidence')

24. Mr Pickavance said the Van Tools Evidence and the Footstool Evidence weighed in as

part of his decision (coupled with the failure to notify of absence on the 4th April

2011) to dismiss the Claimant. He accepted he had erred in not giving the Claimant

the chance to answer the allegations in relation to the Footstool Evidence and the

Van Tools Evidence.

25. Mr Pickavance also accepted that his record keeping of times the Claimant had been

off work latterly was non-existent.

26. Mr Pickavance explained that the Respondent business was a small business. When

the Claimant did not adhere to the rules about notifying when he was off work and

took Mondays off when he was not sick (but suffering the after effects of "Sunday

activity'') and displayed insubordinate bad temper it made it difficult for Mr

Pickavance in relation to the other staff. It was not fair on them and created a poor

work atmosphere. For that reason he said he felt he had no alternative but to dismiss

the Claimant on the 5th April without notice.

27. Mr Pickavance candidly admitted that he now knew his procedures for dismissal were

not adequate. He had not dismissed the Claimant in a cavalier manner, there was

good reason. He felt no animosity to the Claimant on whom he wished no ill will. In

fact the Respondent had written off some £1453.40 owed by the Claimant to the

Respondent for goods purchased.

28. The Claimant said he was unfairly dismissed. He had not been given a chance to put

his statement about the Footstool Evidence and the Van Tools Evidence. He admitted

the latter but said in mitigation it was borne out of frustration. The other van drivers

were supposed to empty their tools out when vacating the van and that often didn't

happen. This necessitated the Claimant having to empty the tools of others and in

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consequence made him late for his first job of the day. He always emptied the van of

his tools the previous day and the situation was simply unfair to him.

29. As to the Footstool Evidence the Claimant asked permission of Sandy Smith who was

the store manager and had no reason to assume that was not in order.

30. The Claimant admitted he had received a warning in the past. He could not

remember when but the warning was quite simply that he should not be sick on a

Monday or he would get the sack. He thought that was odd as he said he had no

control over illness but he did not query it.

31. The Claimant said he gained alternative employment on the 11th April 2011. He had

not been paid by the Respondent for the 2nd, 3'd, 4th and 5th April 2011 and had not

received any payment in lieu of notice.

He stated he was entitled to 4 weeks' holiday pay.

32. He did not wish to be re engaged or reinstated.

33. The Claimant said he bore the Respondent no ill will. He had enjoyed his job.

34. The Claimant said he did not obtain any job seekers allowance.

35. Both the Claimant and Respondent agreed the Respondent had dismissed the

Claimant on the 5th April 2011 because of the Claimant's conduct.

THE LAW

36. The following statutory provisions apply. They are not repeated here in full as the

text is readily available to read at the relevant government offices.

The Employment Act 2006 CThe Act'):

Section 106

Section 111

Section 113

Section 133

Section 134

Notice periods

Right not to be unfairly dismissed

Fairness of dismissal

Complaint to the Tribunal

Remedies for unfair dismissal

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Section 140

Section 141

Section 142

Section 143

Section 8

Compensation for unfair dismissal

Reduction in compensation

Calculation of basic award

Calculation of compensatory award

Written particulars of employment

Section 18 Breach of requirement to provide written particulars of employment

Schedule 5 Section 2(2) "A person's employment during any period shall, unless

the contrary is shown, be presumed to be continuous."

37. This is therefore a rebuttable presumption about continuous employment. The

burden of proof in relation to rebuttal resting in this case on the Respondent.

CASES

38. British Home Stores Ltd v Burchell [1978] IRLR 379 (followed in the Isle of Man case

of Paul Stevens v JAK Limited case nos. 1048 & 1042).

" it is for the Respondent to show what was the reason, or if there was more than

one reason, the principal reason for the dismissal and that the reason was one falling

within Section 113 or some other substantial reason of a kind to justify the dismissal

following from that the Tribunal considers the reasonableness of the Respondent's

actions in relying on that conduct or other reason as sufficient reason for dismissing

the Claimant.

The test set out in the Burchell case requires;

the reason for the dismissal

Reasonableness of the

decision

(1)

(2)

(3)

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the employer to genuinely believe in the

Claimant's guilt.

that he had reasonable grounds to

sustain that belief.

that he carried out as much investigation

into the matter as was reasonable in the

circumstances.

39. Iceland Frozen Foods v Jones [1982J IRLR 439 stated that the Tribunal should not

substitute their decision as to what was the right course to adopt. Its role was to

determine if the decision to dismiss fell within the band of reasonable responses

which a reasonable employer might have adopted. ('the Band of Reasonable

Responses Test,)

40. SainsburY's Supermarkets Ltd v Hitt [2003J IRLR 23CA stated that the band of

reasonable responses applied to the decision to dismiss and the procedure by which

that decision was reached .

41. Byrne v Kinemotograph Reuters Society Limited [19S8J IWLR 762 which states the

requirements of natural justice require the person who is accused to know the nature

of the accusation made and be given an opportunity to state his case. He must know

sufficiently what is being said against him to be able to properly put forward his

case.

42. "IDS Contracts of Employment 2001 includes the following p361-4 on Termination by

operation of law and in particular by imprisonment. Whether a custodial sentence

has the effect of frustrating a contract will depend on all the circumstances of the

case, but the length of the term to be served is a significant factor.

A short sentence will not frustrate a contract e.g. a 20 day sentence (Mecca v

Shepherd EAT 397/&). Certainly if the period of imprisonment is less than the

contractual notice that the employer is obliged to give it will be difficult to argue

frustration. "

THE DECISION

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43. Both the Claimant and Respondent agreed that the Claimant had been dismissed on

the 5th April 2011 because of his conduct. The Tribunal also agrees and finds

accordingly.

44. The Tribunal had little difficulty in finding that the dismissal of the Claimant was

unfair. The Respondent admitted as much. Mr Pickavance agreed that he did not give

the Claimant an opportunity to answer the claims made against him in relation to the

Van Tools Evidence and the Footstool Evidence even though they formed part of the

reason for dismissal. Mr Pickavance admitted he had not carried out any procedure

before dismissing the Claimant whatsoever. It had not been sufficiently explained to

the Claimant why his position was being considered on the 4th April. Was it because

he had failed to notify the Respondent on the morning of the 4 th April he would not

be coming to work that day or was it because it was a Monday and there was a

suspicion it was not a genuine illness? The Claimant simply did not know.

He also did not know that the Respondent had, during the day of the 4th April 2011,

found out about the Footstool Evidence and the Van Tools Evidence and that was

being taken account of by the Respondent in reaching a decision to dismiss him.

Furthermore there was no clear evidence that the Claimant had been given a final

warning about not notifying the Respondent early in the day when off sick. Although

there was evidence that the Claimant had been off sick on a Monday there was no

evidence that this happened very regularly and the evidence that did exist was dated

2008 and clearly showed the Claimant had notified of his sickness on the days in

question.

45. Taking into account the Burchell Test the Tribunal finds that the Respondent

genuinely believed in the Claimant's guilt as to the conduct on which it based its

dismissal. The evidence of Mr Pickavance was clear that he believed he had

dismissed the Claimant because of unacceptable conduct about which he had warned

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the Claimant. However the Respondent's case does not pass the Burchell test as the

Respondent did not carry out as much investigation into the matter as was

reasonable in not giving the Claimant a chance to answer the allegations against him.

46. As to warnings given, both parties agreed warnings had been given but neither was

clear when. The Claimant stated it was a warning not to be sick on a Monday. That is

denied. The Tribunal does not accept it was a warning not to be sick on a Monday

and prefers the evidence of the Respondent. To make such a warning would be

ludicrous.

47. The reason to dismiss did not pass the Band of Reasonable Responses Test. The

Tribunal assesses the Respondent's conduct in this respect taking care not to

substitute its own views for that of the Respondent. The Band of Reasonable

Responses Test includes procedure. There was no procedure which involved the

Claimant's participation. The Respondent's response did not therefore fall within the

Band of Reasonable Responses.

48. Having found the Claimant was unfairly dismissed it falls to the Tribunal to consider

quantum.

49. The first consideration is the number of years of continuous employment the

Claimant had with the Respondent. The Claimant says 2002 to 2011 continuous

employment as whilst he was prison in 2005 he continued to be employed.

50. As stated, the burden of proof rests with the Respondent to rebut the presumption

that it was continuous employment. The Respondent attempted this by providing the

Handwritten Paysheet and the Pay Reports ('the Later Produced Documents').

51. The evidence of the Claimant was not entirely clear. He spoke of his surprise when

he learned he could go back to his job on release. He earlier said it had been agreed

he would return to work. He also said he got his 4 weeks' holiday pay and that the

other 2 weeks he was off was simply paid in the normal manner. In his later letter he

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said he was continued to be employed whilst in prision but not paid for 4 weeks of

the 6 weeks he was in prison. In other words suspended without pay (the Later

Letter,). His evidence was not entirely convincing or consistent.

The Tribunal was not entirely happy that neither the Claimant nor Respondent had

produced evidence they could have produced in relation to the issue of continuous

employment and the Tribunal gained the impression neither appreciated the

significance in relation to quantum. The Tribunal took the unusual step of allowing

the Respondent to produce the Later Produced Documents and allowed the Claimant

to respond to these in writing. This is not an ideal situation and one upon which the

Tribunal frowns. However, in this case given the overriding objectives in the Tribunal

Rules, its power within the Rules generally and the lack of objection by either party it

has taken account of the Later Produced Documents and the Later Letter.

52. A key issue with regard to the computation of the award is whether, for the purposes

of continuity, the Claimant's employment began in 2002 or 2005. The burden of

disproving the continuity of employment from 2002 lies with the Respondent.

The Claimant's case was that he had been employed by the Respondent for eight

years. In his Claim to the Employment Tribunal, at paragraph 6.1, he stated that his

employment began on the 3rd June, 2003. In his evidence, the Respondent said that

the Claimant was first employed in 2002. Therefore if there was continuity of

employment, the Claimant's statement of eight years' service would be correct.

The Respondent stated in his Response to the 'Claim to Employment Tribunal' (the

Response Statement') on page 3, paragraph 4, the second line: 'We re-employed him

after he was imprisoned in 2005.'

53. The only documentary evidence in support of this was the Handwritten Paysheet and

the Pay reports, which showed the non-payment of wages to the Claimant for the

final two week period of his imprisonment. No evidence was given that the

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Respondent actually terminated the Claimant's employment contract in 2005 and

communicated this to him.

54. Documentary evidence was before the Tribunal of the Respondent's written terms

and conditions of the Claimant's employment Cthe Written Terms'), which the

Claimant had signed on the 29th July, 2008; but no mention was made of its

commencement date.

55. The Claimant gave hearsay evidence of a conversation between his mother and Mary

Pickavance, who was then a Director of the Respondent. Hearsay evidence is, at

best, of limited value. It is common ground that the Claimant did return to his

employment with the Respondent on being released from prison. Therefore, taken as

a whole, all that can be safely said about this evidence is that, for whatever reason,

the conversation between the Claimant and his mother caused him to return to the

Respondent's place of business where he was given work to do. But it does not

resolve the issue of continuity of employment.

56. This was the sum total of the evidence on this issue before the Tribunal.

57. The non-payment of wages for the two-week period of the Claimant's imprisonment

is some evidence of a lack of continuity of employment; but does it, without more,

discharge the Respondent's burden of proof? Viewed objectively on its own, although

it can read as meaning that the employment had been terminated, it can equally be

read as meaning that the Claimant was still an employee of the Respondent, but was

absent without pay for the period of his imprisonment. Therefore it is inconclusive.

58. The absence of any evidence that the Claimant was actually dismissed when he went

to prison; the absence of any statement on the Written Terms of the date when the

employment commenced; coupled with the fact that the Claimant simply resumed his

job on being released from prison, all support the continuity of Claimant's

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employment since 2002. The Respondent had the burden of disproving this. On the

evidence before us, he has not done so.

59. The Tribunal finds the Respondent has not rebutted the presumption of continuous

employment from 2002 and that the current employment of the Claimant by the

Respondent commenced in 2002. He has therefore 8 full years' service.

60. The Basic Award is the equivalent of one week's gross pay for each full year of work.

In accordance with the findings that is 8 full years @ £355.77 per week gross which

equals £2846.16.

61. The Compensatory Award immediate loss comprises of

the 4 days (2nd, 3rd

, 4th and 5th April 2011) for which the

Claimant was not paid @ £44.19 per day net.

and

The 5 days the Claimant was out of work (6th, 7th, 8th

,

9th and 10th April 2011).

The Claimant is also entitled to payment in lieu of notice.

The Claimant is entitled to 8 weeks' notice. One week's

net wage is £309.22.

The Claimant is entitled to receive compensation for

loss of statutory rights namely loss of statutory notice

and the right not to be unfairly dismissed. The Tribunal

awards a minimum of £200 and maximum of £320 in

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£ 176.76

£ 220.95

£2473.76

this respect the minimer increases incrementally at the

rate of flO per annum. In this case it is therefore £ 280.00

62. The Tribunal considered an award for injury to feelings but felt it was not warranted.

The Respondent was at fault but had not behaved in so cavalier a fashion as to

warrant an increase beyond the compensatory award. It had been grossly

incompetent but no further and the Tribunal noted it had forgiven the debt the

Claimant had to it which was commendable.

63. The Tribunal has to make an award in terms of Section 18 of the Act. The

Respondent's written terms of employment did not include the commencement date

which is required by statute and in this case would have been particularly helpful.

In terms of Section 18 the Tribunal awards the equivalent of 2 weeks wages for the

breach of Section 18. This is £618.44.

64. There was no loss of pension and no expenses were claimed. The Tribunal has to

consider whether there should be any reduction in the award because the Claimant

has failed to mitigate his loss. The Claimant obtained alternative employment very

quickly and the Tribunal finds there should be no reduction in this respect.

65. The Tribunal has to consider whether there should be any reduction in the award

because of the Claimant's conduct. The Tribunal considered very carefully what Mr

Pickavance said about the Claimants conduct but there was no evidence of prolonged

and frequent absences on Mondays. There was insufficient evidence of failure more

than once to notify on the day about absences. There was insufficient evidence of a

course of frequent bad tempers and insubordination by the Claimant. Taking all into

account the Tribunal finds there is insufficient evidence to support a reduction in the

amount of the award because of the Claimant's conduct.

66. In summary therefore the award is as follows:

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Basic Award

Compensatory Award

Non payment of 4 days wages

5 days unemployment

8 weeks pay in lieu of notice

Loss of statutory rights

Section 18 award

TOTAL

£2,846.16

£ 176.76

£ 220.95

£2,473.76

£ 280.00

£ 618.44

£6,616.07

61. In conclusion the Tribunal finds it necessary to say that it deliberated a great deal

over the issue of continuous employment and its decision was not reached lightly. It

also feels bound to state that it was very impressed by the benevolence of the

Respondent in retaining the employment of the Claimant after a custodial sentence.

Signed .. ... ...... ........ .

Dr S. Roberts - Chairperson

Sent to parties

Entered in the Register

Clerk to the Tribunal

Dated 27&0 September 2011

.";;~.5.?~ 6101.. \

~ .. ~ 8-a\.. \

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Notice

The Employment Tribunal (Interest on Awards) Order 1992

Tribunal Case No. 11/43

Nigel Christopher Moody -v- Cubbin and Bregazzi Limited

The Employment Tribunal (Interest on Awards) Order 1992 provides that sums of money payable as a result of the decision of an Employment Tribunal shall carry interest, where the sum of money remains unpaid on the "Calculation Day", which is the day immediately following the expiry of 42 days beginning with the "Decision Day", this being the date upon which the Tribunal's decision is recorded as having been sent to the parties.

In respect of the above case:

The Decision day is the 27th September 2011

The Calculation Day is the 8th November 2011

The prescribed rate of interest is 4 % per annum.

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